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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) January 29, 1997
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Post Apartment Homes, L.P.
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(Exact name of registrant as specified in its charter)
Georgia 0-28226 58-2053632
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(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
3350 Cumberland Circle, Atlanta, Georgia 30339
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (770) 850-4400
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This document consists of 124 pages
The Exhibit Index is at page 4.
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Item 5. Other Events
Post Apartment Homes, L.P. (the "Registrant") is filing this Current
Report on Form 8-K so as to file with the Securities and Exchange Commission
certain items that are to be incorporated by reference into its Registration
Statement on Form S-3 (Registration No. 333-3555).
Item 7. Financial Statements and Exhibits.
(c) Exhibits.
1(a) - Distribution Agreement
4(a) - Form of Fixed Rate Note
4(b) - Form of Floating Rate Note
5(a) - Opinion of King & Spalding
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
POST APARTMENT HOMES, L.P.
(Registrant)
By: POST PROPERTIES, INC.,
as general partner
Date: January 29, 1997 By: John A. Williams
--------------------------------
John A. Williams
Chairman of the Board, Chief
Executive Officer and Director
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Number and Description Page
- ------------------------------ ----
<S> <C>
1(a)- Distribution Agreement
4(a)- Form of Fixed Rate Note
4(b)- Form of Floating Rate Note
5(a)- Opinion of King & Spalding
</TABLE>
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EXHIBIT 1(a)
POST APARTMENT HOMES, L.P.
MEDIUM-TERM NOTES
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
DISTRIBUTION AGREEMENT
January 29, 1997
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center
North Tower, 10th Floor
New York, New York 10281-1310
J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260
Dear Sirs:
Post Apartment Homes, L.P., a Georgia limited partnership (the "Operating
Partnership"), confirms its agreement with Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated and J.P. Morgan Securities Inc. (each, an
"Agent," and collectively, the "Agents") with respect to the issue and sale by
the Operating Partnership of its Medium-Term Notes Due Nine Months or More From
Date of Issue (the "Notes"). The Notes are to be issued pursuant to an
Indenture, dated as of September 25, 1996, as amended or modified from time to
time (the "Indenture"), between the Operating Partnership and SunTrust Bank,
Atlanta, as trustee (the "Trustee"). As of the date hereof, the Operating
Partnership has authorized the issuance and sale of up to U.S. $175,000,000
aggregate initial offering price of Notes (or its equivalent, based upon the
exchange rate on the applicable trade date in such foreign or composite
currencies as the Operating Partnership shall designate at the time of
issuance) to or through the Agents pursuant to the terms of this Agreement. It
is understood, however, that the Operating Partnership may from time to time
authorize the issuance of additional Notes and that such additional Notes may
be sold to or through the Agents pursuant to the terms of this Agreement, all
as though the issuance of such Notes were authorized as of the date hereof.
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This Agreement provides both for the sale of Notes by the Operating
Partnership to one or more Agents as principal for resale to investors and other
purchasers and for the sale of Notes by the Operating Partnership directly to
investors (as may from time to time be agreed to by the Operating Partnership
and the applicable Agent), in which case such Agent will act as an agent of the
Operating Partnership in soliciting offers for the purchase of Notes.
Post Properties, Inc., a Georgia corporation (the "Company"), and the
Operating Partnership have filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (No. 333-3555) for the
registration of, among other securities, debt securities of the Operating
Partnership (the "Debt Securities"), including the Notes, under the Securities
Act of 1933, as amended (the "1933 Act"), and the offering thereof from time to
time in accordance with Rule 430A or Rule 415 of the rules and regulations of
the Commission under the 1933 Act (the "1933 Act Regulations"). Such
registration statement (as amended, if applicable) has been declared effective
by the Commission and the Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended (the "1939 Act"). Such registration
statement and the prospectus constituting a part thereof (including in each
case the information, if any, deemed to be part thereof pursuant to Rule
430A(b) of the 1933 Act Regulations), and each prospectus supplement relating
to the offering of Notes pursuant to Rule 430A or Rule 415 of the 1933 Act
Regulations (the "Prospectus Supplement"), including all documents incorporated
therein by reference, as from time to time amended or supplemented pursuant to
the 1933 Act, the Securities Exchange Act of 1934, as amended (the "1934 Act"),
or otherwise, are collectively referred to herein as the "Registration
Statement" and the "Prospectus," respectively; provided, that if any revised
Prospectus shall be provided to the applicable Agent(s) by the Operating
Partnership for use in connection with the offering of Notes (whether or not
such revised prospectus is required to be filed by the Company or the Operating
Partnership pursuant to Rule 424(b) of the 1933 Act Regulations), the term
"Prospectus" shall refer to each such revised prospectus from and after the
time it is first provided to such applicable Agent(s) for such use; provided,
further, that a Prospectus Supplement shall be deemed to have supplemented the
Prospectus only with respect to the offering of Notes to which it relates. Any
registration statement (including any supplement thereto or information which
is deemed part thereof) filed by the Operating Partnership under Rule 462(b) of
the 1933 Act Regulations (a "Rule 462(b) Registration Statement") shall be
deemed to be part of the Registration Statement. Any prospectus (including any
amendment or supplement thereto or information which is deemed part thereof)
included in the Rule 462(b) Registration Statement shall be deemed to be part of
the Prospectus. A "preliminary prospectus" shall be deemed to refer to any
prospectus used before the registration statement became effective and any
prospectus furnished by the Operating Partnership after the registration
statement became effective and before any acceptance by the Operating
Partnership of an offer for the purchase of Notes which omitted information to
be
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included upon pricing in a form of prospectus filed with the Commission pursuant
to Rule 424(b) of the 1933 Act Regulations. All references in this Agreement to
financial statements and schedules and other information which is "contained,"
"included" or "stated" in the Registration Statement or the Prospectus (and all
other references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is or is deemed
to be incorporated by reference in the Registration Statement or the Prospectus,
as the case may be; and all references in this Agreement to amendments or
supplements to the Registration Statement or the Prospectus shall be deemed to
mean and include the filing of any document under the 1934 Act which is or is
deemed to be incorporated by reference in the Registration Statement or the
Prospectus, as the case may be. For purposes of this Agreement, all references
to the Registration Statement, any preliminary prospectus, preliminary
prospectus supplement, Prospectus or Prospectus Supplement or any amendment or
supplement to the foregoing shall be deemed to include the copy filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
system ("EDGAR").
The term "Subsidiary" as used herein means a corporation or a partnership
a majority of the outstanding equity interests, as the case may be, of which is
owned or controlled, directly or indirectly, by the Company or the Operating
Partnership, as the case may be, or by one or more other Subsidiaries of the
Company or the Operating Partnership.
SECTION 1. Appointment as Agent.
(a) Appointment. Subject to (i) the terms and conditions stated
herein and (ii) the reservation by the Operating Partnership of the right to
sell Notes directly on its own behalf and to appoint, upon at least 10 days'
prior written notice to the Agents, additional persons to serve as Agents
hereunder (provided that such persons are engaged on the same terms and
conditions as those contained in this Agreement), the Operating Partnership
hereby agrees that Notes will be sold to or through the Agents and that it will
not appoint any other agents to act on its behalf, or to assist it, in the
placement of the Notes; provided, however, that notwithstanding anything to the
contrary included in this Agreement, the Operating Partnership may accept any
offer to purchase Notes from or through any broker or dealer (other than an
Agent) if (i) the Operating Partnership shall not have solicited such offer,
(ii) such broker or dealer is engaged on substantially the same terms and
conditions as those contained in this Agreement, except for the obligations
described in Sections 8(a), 8(b) and 8(c) hereof, and (iii) the Operating
Partnership notifies the Agents promptly following acceptance of such an offer.
(b) Sale of Notes. The Operating Partnership shall not sell or approve
the solicitation of offers for the purchase of Notes in excess of the amount
which shall be authorized by the Operating Partnership from time to time or in
excess of the
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aggregate initial offering price of Notes registered pursuant to the
Registration Statement. The Agents shall have no responsibility for maintaining
records with respect to the aggregate initial offering price of Notes sold, or
of otherwise monitoring the availability of Notes for sale, under the
Registration Statement.
(c) Purchases as Principal. The Agents shall not have any obligation to
purchase Notes from the Operating Partnership as principal. However, absent an
agreement between an Agent and the Operating Partnership that such Agent shall
be acting solely as an agent for the Operating Partnership, such Agent shall be
deemed to be acting as principal in connection with any offering of Notes by
the Operating Partnership through such Agent. Accordingly, the Agents,
individually or in a syndicate, may agree from time to time to purchase Notes
from the Operating Partnership as principal for resale to investors and other
purchasers determined by such Agents. Any purchase of Notes from the Operating
Partnership by an Agent as principal shall be made in accordance with Section
3(a) hereof.
(d) Solicitations as Agent. If agreed upon between an Agent and the
Operating Partnership, such Agent, acting solely as an agent for the Operating
Partnership and not as principal, will solicit offers for the purchase of
Notes. Such Agent will communicate to the Operating Partnership, orally, each
offer for the purchase of Notes solicited by it on an agency basis other than
those offers rejected by such Agent. Such Agent shall have the right, in its
discretion reasonably exercised, to reject any offer for the purchase of Notes,
in whole or in part, and any such rejection shall not be deemed a breach of its
agreement contained herein. The Operating Partnership may accept or reject any
offer for the purchase of Notes, in whole or in part. Such Agent shall make
reasonable efforts to assist the Operating Partnership in obtaining performance
by each purchaser whose offer for the purchase of Notes has been solicited by
it on an agency basis and accepted by the Operating Partnership. Such Agent
shall not have any liability to the Operating Partnership in the event that any
such purchase is not consummated for any reason. If the Operating Partnership
shall default on its obligation to deliver Notes to a purchaser whose offer has
been solicited by such Agent on an agency basis and accepted by the Operating
Partnership, the Operating Partnership shall (i) hold such Agent harmless
against any loss, claim or damage arising from or as a result of such default
by the Operating Partnership and (ii) pay to such Agent any commission to which
it would otherwise be entitled absent such default.
(e) Reliance. The Operating Partnership and the Agents agree that any
Notes purchased from the Operating Partnership by one or more Agents as
principal shall be purchased, and any Notes the placement of which an Agent
arranges as an agent of the Operating Partnership shall be placed by such
Agent, in reliance on the representations, warranties, covenants and agreements
of the Operating Partnership contained herein and on the terms and conditions
and in the manner provided herein.
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SECTION 2. Representations and Warranties.
(a) The Operating Partnership represents and warrants to each Agent as of
the date hereof, as of the date of each acceptance by the Operating Partnership
of an offer for the purchase of Notes (whether to such Agent as principal or
through such Agent as agent), as of the date of each delivery of Notes (whether
to such Agent as principal or through such Agent as agent) (the date of each
such delivery to such Agent as principal is referred to herein as a "Settlement
Date"), and as of any time that the Registration Statement or the Prospectus
shall be amended or supplemented, other than an amendment or supplement
relating solely to the offering of securities other than the Notes (each of the
times referenced above is referred to herein as a "Representation Date"), as
follows:
(1) The Operating Partnership meets the requirements for use
of Form S-3 under the 1933 Act. The Registration Statement
(including any Rule 462(b) Registration Statement) has become
effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement or any part thereof has
been issued under the 1933 Act and no proceeding for that purpose
has been instituted or is pending or, to the knowledge of the
Operating Partnership, is contemplated or threatened by the
Commission or by the state securities authority of any jurisdiction,
and any request on the part of the Commission for additional
information has been complied with. The Indenture has been duly
qualified under the 1939 Act. No order preventing or suspending the
use of the Prospectus has been issued and no proceeding for that
purpose has been instituted or, to the knowledge of the Operating
Partnership, threatened by the Commission or by the state securities
authority of any jurisdiction.
(2) The Registration Statement, at the time it became
effective, complied, and the Registration Statement and the
Prospectus, at each Representation Date, will comply, in all
material respects with the requirements of the 1933 Act and the
1933 Act Regulations and the 1939 Act and the rules and regulations
of the Commission under the 1939 Act (the "1939 Act Regulations").
The Registration Statement, at the time the Registration Statement
became effective, did not, and as of each Representation Date will
not, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading. As of the date hereof,
at the date of the Prospectus and at each Representation Date, the
Prospectus and any amendments and supplements thereto (unless the
term "Prospectus" refers to a prospectus which has been provided to
an Agent by the Operating Partnership for use in connection with an
offering of
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Notes which differs from the Prospectus on file at the Commission
at the time the Registration Statement became effective, in which
case at the time it is first provided to an Agent for such use) did
not and will not contain an untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they
were made, not misleading. If the Operating Partnership elects to
rely upon Rule 434 of the 1933 Act Regulations, the Operating
Partnership will comply with the requirements of Rule 434.
Notwithstanding the foregoing, the representations and warranties
in this subsection shall not apply to statements in or omissions
from the Registration Statement or the Prospectus made in reliance
upon and in conformity with information furnished to the Operating
Partnership in writing by the Agents expressly for use in the
Registration Statement or the Prospectus or to that part of the
Registration Statement which shall constitute the Statement of
Eligibility and Qualification on Form T-1 under the 1939 Act (the
"Statement of Eligibility") of the Trustee under the Indenture. If
a Rule 462(b) Registration Statement is required in connection with
the offering and sale of Notes, the Operating Partnership has
complied or will comply with the requirements of Rule 111 of the
1933 Act Regulations relating to the payment of filing fees
therefore.
(3) Each preliminary prospectus, preliminary prospectus
supplement and Prospectus Supplement filed as part of the
Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied, when so filed, in all material respects with the 1933 Act
Regulations and, if applicable, each preliminary prospectus and the
Prospectus delivered to the Agents for use in connection with the
offering of Notes will, at the time of such delivery, be identical
to the electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
(4) The documents incorporated or deemed to be incorporated by
reference in the Prospectus, at the time they were or hereafter are
filed with the Commission, complied and will comply in all material
respects with the requirements of the 1934 Act and the rules and
regulations of the Commission thereunder (the "1934 Act
Regulations") and, when read together with the other information in
the Prospectus, at the time the Registration Statement became
effective, at the date hereof, at the date of the Prospectus and as
of each Representation Date, did not and will not include an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or
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necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(5) The accounting firm that certified the financial
statements and supporting schedules included in, or incorporated by
reference into, the Registration Statement and the Prospectus, is
an independent public accountant as required by the 1933 Act and
the 1933 Act Regulations.
(6) The consolidated financial statements of the Company and
the Operating Partnership incorporated by reference into the
Registration Statement and the Prospectus, together with the
related schedules and notes, as well as those financial statements,
schedules and notes of any other entity included therein, present
fairly the financial position of the Company, the Operating
Partnership and their consolidated subsidiaries, or such other
entities, as the case may be, at the respective dates indicated and
the statement of operations, stockholders' equity, partners'
equity, and cash flows of the Company, the Operating Partnership
and their consolidated subsidiaries, or such other entities, as the
case may be, for the periods specified. Such financial statements
have been prepared in conformity with generally accepted accounting
principles ("GAAP") applied on a consistent basis throughout the
periods involved. The supporting schedules, if any, included in,
or incorporated by reference into, the Registration Statement and
the Prospectus present fairly the information required to be stated
therein. The selected financial data and the summary financial
information included in, or incorporated by reference into, the
Prospectus present fairly the information shown therein and have
been compiled on a basis consistent with that of the audited
financial statements included in, or incorporated by reference
into, the Registration Statement and the Prospectus. The Company's
and the Operating Partnership's ratios of earnings to fixed charges
(actual and, if any, pro forma) included in the Prospectus under
the captions "Ratios of Earnings to Fixed Charges" and in Exhibit
12.1 to the Registration Statement have been calculated in
compliance with Item 503(d) of Regulation S-K of the Commission. In
addition, any pro forma financial statements included in, or
incorporated by reference into, the Registration Statement and the
Prospectus comply in all material respects with the applicable
requirements of Rule 11-02 of Regulation S-X of the Commission, and
the assumptions used in the preparation thereof are, in the opinion
of the Company, reasonable and the adjustments used therein are
appropriate to give effect to the transactions and circumstances
referred to therein and have been properly applied to the historical
amounts in the compilation of such
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statements. Other than the historical financial statements (and
schedules) included therein, no other historical or pro forma
financial statements (or schedules) are required by the 1933 Act or
the 1933 Act Regulations to be included in the Registration
Statement.
(7) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein, (A) there has been no material adverse
change in the condition, financial or otherwise, or in the
earnings, assets, business affairs or business prospects of the
Operating Partnership and its Subsidiaries considered as one
enterprise (a "Material Adverse Effect"), whether or not arising in
the ordinary course of business; (B) no casualty loss or
condemnation or other adverse event with respect to any of the
interests held directly or indirectly in any of the real properties
owned, directly or indirectly, by the Operating Partnership or its
Subsidiaries (the "Properties") has occurred that is material to
the Operating Partnership and its Subsidiaries considered as one
enterprise; (C) there have been no transactions entered into by the
Operating Partnership or any Subsidiary, other than those arising
in the ordinary course of business, which are material with respect
to the Operating Partnership and its Subsidiaries considered as one
enterprise or that would result, upon consummation, in any material
inaccuracy in the representations contained in Section 2(a)(6)
above; (D) neither the Operating Partnership nor any Subsidiary has
incurred any material obligation or liability, direct, contingent
or otherwise; and (E) there has been no material change in the
short-term debt or long-term debt of the Operating Partnership.
(8) The Operating Partnership has been duly formed and is
validly existing as a limited partnership in good standing under
the Georgia Revised Uniform Limited Partnership Act (the "Georgia
Act") with partnership power and authority to own, lease and
operate its properties, to conduct the business in which it is
engaged and to enter into and perform its obligations under this
Agreement and the other agreements to which it is a party. The
Operating Partnership is duly qualified or registered as a foreign
partnership and is in good standing in each jurisdiction in which
such qualification or registration is required, whether by reason
of the ownership, leasing or management of property or the conduct
of business, except where the failure to so qualify or register
would not have a Material Adverse Effect.
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(9) Each of the Subsidiaries has been duly formed and is
validly existing and in good standing under the laws of its
jurisdiction of organization with partnership or corporate power
and authority to conduct the business in which it is engaged and to
own, lease and operate its properties as described in the
Prospectus and to enter into and perform its obligations under any
agreements to which it is a party. Each of the Subsidiaries is
duly qualified as a foreign partnership, corporation or other
organization to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property, the management of
properties by others or the conduct of business, except where the
failure to so qualify would not have a Material Adverse Effect.
(10) All of the issued and outstanding shares of capital stock
and partnership interests, as the case may be, of each Subsidiary
have been validly issued and fully paid and are owned by the
Operating Partnership, the Company, another Subsidiary, and/or
certain affiliated entities as described in the Registration
Statement, in each case free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity, other than
the transfer restrictions set forth in the Option and Transfer
Agreement by and among the Operating Partnership, Post Services,
Inc., John A. Williams and John T. Glover. Except as otherwise
disclosed in the Registration Statement or Prospectus, the Operating
Partnership owns no direct or indirect equity interest in any
entity other than its Subsidiaries.
(11) The Operating Partnership has full power and authority to
enter into and perform its obligations under this Agreement and
this Agreement has been duly authorized, executed and delivered by
the Operating Partnership and, assuming due authorization,
execution and delivery by the other parties thereto, is a valid and
binding agreement of the Operating Partnership enforceable against
the Operating Partnership in accordance with its terms, except as
(A) the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally, (B) the availability of equitable
remedies may be limited by equitable principles of general
applicability, and (C) rights to indemnity and contribution
thereunder may be limited by state or federal securities laws or
the public policy underlying such laws.
(12) The Indenture (A) has been duly authorized, executed and
delivered and, assuming due authorization, execution and delivery
by the Trustee, constitutes a valid and binding obligation of the
Operating
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Partnership, enforceable against the Operating Partnership in
accordance with its terms, subject to (i) applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or
similar laws affecting creditors' rights generally from time to
time in effect and (ii) general principles of equity (regardless
of whether such enforceability is considered in a proceeding at law
or in equity) and except the effect on enforceability of (a)
requirements that a claim with respect to any Notes payable other
than in U.S. dollars (or a foreign or composite currency judgment
in respect of such claim) be converted into U.S. dollars at a rate
of exchange prevailing on a date determined pursuant to applicable
law or (b) federal or state law limiting, delaying or prohibiting
the making of payments outside the United States; and (B) conforms
in all material respects to the description thereof in the
Prospectus.
(13) The Notes have been duly authorized by the Operating
Partnership for offer, sale, issuance and delivery pursuant to
this Agreement and when issued and authenticated in the manner
provided for in the Indenture and delivered against payment of the
consideration therefor, will constitute valid and legally binding
obligations of the Operating Partnership, entitled to the benefits
of the Indenture enforceable against the Operating Partnership in
accordance with its terms, subject to (i) applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or
other similar laws relating to or affecting creditors' rights
generally from time to time in effect and (ii) general principles
of equity (regardless of whether such enforceability is considered
in a proceeding at law or in equity) and except the effect on
enforceability of (a) requirements that a claim with respect to
any Notes payable other than in U.S. dollars (or a foreign or
composite currency judgment in respect of such claim) be converted
into U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (b) federal or state law
limiting, delaying or prohibiting the making of payments outside
the United States. Such Notes will be in the form contemplated by,
and each registered holder thereof is entitled to the benefits of,
the applicable Indenture. The terms of such Notes conform in all
material respects to all statements and descriptions related
thereto contained in the Prospectus. Such Notes rank and will rank
on a parity with all unsecured and unsubordinated indebtedness of
the Operating Partnership that is outstanding on the Delivery Date
or
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that may be incurred thereafter, except that such Notes will be
effectively subordinated to the prior claims of each secured
mortgage lender to any specific Property which secures such lender's
mortgage.
(14) Neither the Operating Partnership nor any of its
Subsidiaries is in violation of its charter, by-laws, certificate
of limited partnership, partnership agreement or LLC agreement, as
the case may be, or in default in the performance or observance of
any obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to which it
or any of them is a party or by which any of them may be bound, or
to which any of their property or assets is subject, except for such
defaults that could not result in a Material Adverse Effect. The
execution, delivery and performance of this Agreement and the
Indenture and the execution and delivery of the Notes and the
transactions contemplated herein or therein, including the issuance,
sale and delivery of the Notes and the use of the proceeds from the
sale of the Notes as described in the Prospectus under the caption
"Use of Proceeds," and compliance by the Operating Partnership with
its obligations hereunder and thereunder, (A) do not and will not,
whether with or without the giving of notice or passage of time or
both, conflict with or constitute a breach of, or default or
Repayment Event (as defined below) under, or result in the creation
or imposition of any lien, charge or encumbrance upon any assets,
properties or operations of the Operating Partnership or any of its
Subsidiaries pursuant to, any material contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or
other agreement or instrument to which the Operating Partnership or
any of its Subsidiaries is a party or by which it or any of them may
be bound, or to which any of their properties or assets is subject,
nor (B) will such action result in any violation of the provisions
of the (i) charter, bylaws, LLC agreement or partnership agreement
of the Operating Partnership or any Subsidiary, as the case may be,
or (ii) any applicable law, statute, rule, regulation, judgment,
order, writ or decree of any government, government agency or court,
domestic or foreign, having jurisdiction over the Operating
Partnership or any Subsidiary or any of their assets, properties or
operations except any violation that could not result in a Material
Adverse Effect. As used herein, a "Repayment Event" means any
event or condition which gives the holder of any note, debenture or
other evidence of indebtedness (or any person acting on such
holder's behalf) the right to require the repurchase, redemption
or repayment of all or a portion of such indebtedness by the
Operating Partnership or any Subsidiary.
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(15) No labor dispute with the employees of the Company, the
Operating Partnership or any Subsidiary exists or, to the knowledge
of the Operating Partnership, is imminent, which may result in a
Material Adverse Effect.
(16) There is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, now
pending, or to the knowledge of the Operating Partnership
threatened against or affecting the Operating Partnership, any
Subsidiary thereof, any Property or any officer or director of the
foregoing, which is required to be disclosed in the Registration
Statement and the Prospectus (other than as stated therein), or
which could reasonably be expected to result in a Material Adverse
Effect, or which might materially and adversely affect the
consummation of this Agreement, the Indenture or the transactions
contemplated herein or therein or the performance by the Operating
Partnership of its obligations under this Agreement, the Indenture
or the Notes. There is no pending legal or governmental proceedings
to which the Operating Partnership or any Subsidiary is a party or
of which any of their respective assets or properties is subject
which could reasonably be expected to result in a Material Adverse
Effect.
(17) There are no contracts or documents of the Company or the
Operating Partnership which are required to be described in the
Registration Statement, the Prospectus or the documents
incorporated by reference therein or to be filed as exhibits
thereto which have not been so described and/or filed as required.
(18) No authorization, approval or consent of any court or
governmental authority or agency is necessary or required for the
performance by the Operating Partnership of its obligations under
this Agreement, the Indenture and the Notes or in connection with
the transactions contemplated under this Agreement, the Indenture,
or the Notes, except such as have been already obtained or as may
be required under the 1933 Act, the 1939 Act, the 1933 Act
Regulations or state securities or real estate syndication laws or
the rules of the National Association of Securities Dealers, Inc.
("NASD").
(19) The Operating Partnership and its Subsidiaries own or
possess trademarks, service marks, trade names or other
intellectual property (collectively, "Intellectual Property")
necessary to carry on the business now operated by them, and
neither the Operating Partnership nor any of its Subsidiaries has
received any notice or is otherwise aware of any infringement of or
conflict with asserted rights of others with respect to any
Intellectual Property or of any facts or
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circumstances which would render any Intellectual Property invalid
or inadequate to protect the interest of the Operating Partnership
or any of its Subsidiaries therein, and which infringement or
conflict (if the subject of any unfavorable decision, ruling or
finding) or invalidity or inadequacy, singly or in the aggregate,
would result in a Material Adverse Effect.
(20) Each of the Operating Partnership and its Subsidiaries
has all permits, licenses, approvals, consents, certificates and
other authorizations of and from (collectively, "Governmental
Licenses") and has made all declarations and filings with all
appropriate federal, state, local, foreign and other governmental
authorities, all self regulatory organizations and all courts and
other tribunals required for it to own, lease, license and use its
properties and assets and to conduct its business in the manner
described in the Registration Statement and the Prospectus, other
than such Governmental Licenses the absence of which, singly or in
the aggregate, could be reasonably likely to result in a Material
Adverse Effect. Neither the Operating Partnership nor any of its
Subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which,
singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, could be reasonably likely to result
in a Material Adverse Effect.
(21) (A) Except as otherwise set forth in the Registration
Statement or Prospectus, the Operating Partnership has good and
marketable fee simple title to the land underlying the Properties
and good and marketable title to the improvements thereon and all
other assets that are required for the effective operation of such
Properties in the manner in which they currently are operated,
subject, however, to mortgages on such Properties, to utility
easements serving such Properties, to liens of ad valorem
taxes not due and payable, to zoning and similar governmental land
use matters affecting such Properties that are consistent with the
current uses of such Properties, to matters of title not adversely
affecting marketability of title to such Properties, other
statutory liens not due and payable, title matters that may be
material in character, amount or extent but which do not materially
detract from the value, or interfere with the use of, the
Properties or otherwise materially impair the business operations
being conducted or proposed to be conducted thereon, ownership of
cable television lines and facilities serving one or more of such
Properties by the cable television providers or their affiliates,
service marks and trade names used in connection with such
Properties, and ownership by others of certain
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<PAGE> 14
items of equipment and other items of personal property that are not
material to the conduct of business operations at such Properties;
(B) the ground lease under which the Operating Partnership leases
the land on which any Property is located is in full force and
effect, and the Operating Partnership is not in default in respect
of any of the terms or provisions of any such lease and the
Operating Partnership has not received notice of the assertion of
any claim by anyone adverse to the Operating Partnership's rights
as lessee under any such lease, or affecting or questioning the
Operating Partnership's right to the continued possession or use of
the Property under any such lease or of a default under any such
lease, other than claims which would not have a Material Adverse
Effect; (C) all liens, charges, encumbrances, claims, or
restrictions on or affecting any of the Properties and the assets
of the Operating Partnership or any Subsidiary which are required
to be disclosed in the Prospectus are disclosed therein; (D) none
of the Operating Partnership or any tenant of any of the Properties
is in default under any of the leases pursuant to which the
Operating Partnership, as lessor, leases its Property (and the
Operating Partnership does not know of any event which, but for the
passage of time or the giving of notice, or both, would constitute
a default under any of such leases) other than such defaults that
would not have a Material Adverse Effect; (E) except as otherwise
set forth in the Registration Statement or Prospectus or to the
extent not material to the Operating Partnership, no person has an
option or right of first refusal to purchase all or part of any
Property or any interest therein; (F) each of the Properties
complies with all applicable codes, laws and regulations
(including, without limitation, building and zoning codes, laws and
regulations and laws relating to access to the Properties), except
to the extent disclosed in the Prospectus and except for such
failures to comply that would not individually or in the aggregate
have a Material Adverse Effect; (G) the Operating Partnership does
not have knowledge of any pending or threatened condemnation
proceedings, zoning change, or other similar proceeding or action
that will in any manner affect the size of, use of, improvements
on, construction on or access to the Properties, except such
proceedings or actions that would not have a Material Adverse
Effect; and (H) other than with respect to the Property known as
"Post Woods," the Operating Partnership is the beneficiary of title
insurance on the Properties in amounts that were commercially
reasonable at the time such policies were issued, and in each case
such title insurance is in full force and effect.
(22) The Operating Partnership is not, and upon the issuance
and sale of the Notes as herein contemplated and the application of
the net proceeds therefrom as described in the Prospectus will not
be, an "investment company" within the meaning of the Investment
Company
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<PAGE> 15
Act of 1940, as amended (the "1940 Act"), or is or will become a
"holding company" or a "subsidiary company" of a "registered holding
company," as defined in the Public Utility Holding Company Act of
1935, as amended.
(23) Except as disclosed in the Prospectus, (A) each Property,
including, without limitation, the Environment (as defined
below) associated with each Property, is free of any Hazardous
Substance (as defined below) in violation of any Environmental Law
(as defined below) applicable to the Properties, except for any
Hazardous Substance that would not have any Material Adverse
Effect; (B) neither the Operating Partnership nor any Subsidiary
has caused or suffered to occur any Release (as defined below) of
any Hazardous Substance into the Environment on, in, under or from
any Property in violation of any Environmental Law applicable to
such Property, and no condition exists on, in or under any Property
or, to the knowledge of the Operating Partnership, any property
adjacent to any Property that could result in the occurrence of
liabilities under, or any violations of, any Environmental Law
applicable to such Property, give rise to the imposition of any
Lien (as defined below) under any Environmental Law, or cause or
constitute a health, safety or environmental hazard to any
property, person or entity except any violation which could not be
reasonably likely to result in a Material Adverse Effect; (C)
neither the Operating Partnership nor any Subsidiary is engaged in
or intends to engage in any manufacturing or any similar operations
at any Property that (1) require the use, handling, transportation,
storage, treatment or disposal of any Hazardous Substance (other
than paints, stains, cleaning solvents, insecticides, herbicides,
or other substances that are used in the ordinary course of
operating any Property and in compliance with all applicable
Environmental Laws) or (2) require permits or are otherwise
regulated pursuant to any Environmental Law; (D) except as
otherwise set forth in the Registration Statement or Prospectus,
neither the Operating Partnership nor any Subsidiary has received
any notice of a claim under or pursuant to any Environmental Law
applicable to a Property or under common law pertaining to
Hazardous Substances on any Property or pertaining to other
property at which Hazardous Substances generated at any Property
have come to be located which could be reasonably likely to result
in a Material Adverse Effect; (E) except as otherwise set forth in
the Registration Statement or Prospectus, neither the Operating
Partnership nor any Subsidiary has received any notice from any
Governmental Authority (as defined below) claiming any violation of
any Environmental Law that is uncured or unremediated as of the
date hereof which could be reasonably likely to result in a
Material Adverse Effect; and (F) except as otherwise set forth in
the Registration Statement or Prospectus, no Property (1) is
included or, to the knowledge of the Operating Partnership or any
Subsidiary, proposed for inclusion on the National Priorities List
issued pursuant to CERCLA (as defined below) by the United States
Environmental Protection Agency (the "EPA") or on the Comprehensive
Environmental Response, Compensation, and Liability
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<PAGE> 16
Information System database maintained by the EPA as a potential
CERCLA removal, remedial or response site or (2) is included or
proposed for inclusion on, any similar list of potentially
contaminated sites pursuant to any other applicable Environmental
Law nor has the Operating Partnership, or any subsidiary received
any written notice from the EPA or any other Governmental Authority
proposing the inclusion of any Property on such list.
As used herein, "Hazardous Substance" shall include, without
limitation, any hazardous substance, hazardous waste, toxic or
dangerous substance, pollutant, solid waste or similarly designated
materials, including, without limitation, oil, petroleum, or any
petroleum-derived substance or waste, asbestos or
asbestos-containing materials, PCBs, pesticides, explosives,
radioactive materials, dioxins, urea formaldehyde insulation or any
constituent of any such substance, pollutant or waste, including
any such substance, pollutant or waste identified, listed or
regulated under any Environmental Law (including, without
limitation, materials listed in the United States Department of
Transportation Optional Hazardous Material Table, 49 C.F.R. Section
172.101, as the same may now or hereafter be amended, or in the
EPA's List of Hazardous Substances and Reportable Quantities, 40
C.F.R. Part 3202, as the same may now or hereafter be amended);
"Environment" shall mean any surface water, drinking water, ground
water, land surface, subsurface strata, river sediment, buildings,
structures, and ambient, workplace and indoor air; "Environmental
Law" shall mean the Comprehensive Environmental Response,
Compensation and Liability Act, as amended (42 U.S.C. Section
9601, et seq.) ("CERCLA"), the Resource Conservation Recovery Act,
as amended (42 U.S.C. Section 6901, et seq.), the Clean Air Act,
as amended (42 U.S.C. Section 7401, et seq.), the Clean Water Act,
as amended (33 U.S.C. Section 1251, et seq.), the Toxic Substances
Control Act, as amended (15 U.S.C. Section 2601 et seq.), the
Occupational Safety and Health Act of 1970, as amended (29 U.S.C.
Section 651, et seq.), the Hazardous Materials Transportation Act,
as amended (49 U.S.C. Section 1801, et seq.), together with all
rules, regulations and orders promulgated thereunder and all other
federal, state and local laws, ordinances, rules, regulations and
orders relating to the protection of the environment or of human
health from environmental effects; "Governmental Authority" shall
mean any federal, state or local governmental office, agency or
authority having the duty or authority to promulgate, implement or
enforce any Environmental Law; "Lien" shall mean, with respect to
any Property, any material mortgage, deed of trust, pledge,
security interest, lien, encumbrance, penalty, fine, charge,
assessment, judgment or other liability in, on or affecting such
Property; and
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<PAGE> 17
"Release" shall mean any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching,
dumping, emanating or disposing of any Hazardous Substance into the
Environment including, without limitation, the abandonment or
discard of barrels, containers, tanks (including, without
limitation, underground storage tanks) or other receptacles
containing or previously containing any Hazardous Substance or any
release, emission, discharge or similar term, as those terms are
defined or used in any Environmental Law.
(24) Each of the Operating Partnership and its Subsidiaries is
insured by insurers of recognized financial responsibility against
such losses and risks and in such amounts as are prudent and
customary in the businesses in which they are engaged.
(25) The assets of the Operating Partnership do not constitute
"plan assets" under the Employee Retirement Income Security Act of
1974, as amended.
(26) Except as otherwise set forth in the Registration
Statement or Prospectus, the mortgages and deeds of trust
encumbering the properties and assets are not convertible and are
not cross-defaulted or cross-collateralized to any property not
owned by the Operating Partnership or any of its Subsidiaries;
except as otherwise disclosed in the Registration Statement or
Prospectus, none of the Operating Partnership or any of its
Subsidiaries holdsparticipating interests in such mortgages and
deeds of trust.
(27) The partnership agreement of the Operating Partnership
(the "Operating Partnership Agreement") has been duly authorized,
executed and delivered by the parties thereto and constitutes the
valid agreement thereof, enforceable in accordance with its terms,
except as (A) the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally and (B) the availability of
equitable remedies may be limited by equitable principles of
general applicability; and the execution, delivery and performance
of the Operating Partnership Agreement did not, at the time of
execution and delivery, and does not constitute a breach of, or
default under any material contract, lease or other instrument to
which the Operating Partnership is a party or by which its
properties may be bound or any law, administrative regulation or
administrative or court decree.
(28) The Company was organized and has operated in conformity
with the requirements for qualification and taxation as a
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<PAGE> 18
REIT for each of its taxable years beginning with the year ended
December 31, 1993, and its current organization and method of
operation should enable it to continue to meet the requirements for
qualification and taxation as a REIT.
(29) The Operating Partnership and each of the Subsidiary
Partnerships are properly classified as partnerships, and not as
corporations or as associations taxable as corporations, for
Federal income tax purposes throughout the period from July 22,
1993 through the date hereof, or, in the case of any Subsidiary
Partnerships that have terminated, through the date of termination
of such Subsidiary Partnerships.
(30) Each of the Company, the Operating Partnership and its
Subsidiaries has filed all federal, state, local and foreign income
tax returns which have been required to be filed (except in any
case in which the failure to file would not have a Material Adverse
Effect) and has paid all taxes required to be paid and any other
assessment, fine or penalty levied against it, to the extent that
any of the foregoing is due and payable, except, in all cases, for
any such tax, assessment, fine or penalty that is being contested
in good faith.
(31) The Notes, upon issuance, will be excluded or exempted
under, or beyond the purview of, the Commodity Exchange Act, as
amended, and the rules and regulations of the Commodity Futures
Trading Commission under such Act, as amended.
(32) To the Operating Partnership's knowledge after due
inquiry, the Medium-Term Note Program under which the Notes are
issued (the "Program"), as well as the Notes, are rated Baa1 by
Moody's Investors Service, Inc. and BBB+ by Standard & Poor's
Ratings Service, or such other rating as to which the Operating
Partnership shall have most recently notified the Agents pursuant
to Section 4(b) hereof.
(b) Additional Certifications. Any certificate signed by any officer of
the Operating Partnership (or any officer of the Company) or any of its
Subsidiaries and delivered to one or more Agents or to counsel for the Agents
in connection with an offering of Notes to one or more Agents as principal or
through an Agent as agent shall be deemed a representation and warranty by the
Operating Partnership to such Agent or Agents as to the matters covered thereby
on the date of such certificate and, unless subsequently amended or
supplemented, at each Representation Date subsequent thereto.
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SECTION 3. Purchases as Principal; Solicitations as Agent.
(a) Purchases as Principal. Unless otherwise agreed between an Agent and
the Operating Partnership, Notes shall be purchased by such Agent as principal.
Notes purchased from the Operating Partnership by the Agents, individually or
in a syndicate, as principal shall be made in accordance with terms agreed upon
between such Agent or Agents and the Operating Partnership (which terms, unless
otherwise agreed, shall, to the extent applicable, include those terms
specified in Exhibit A hereto and shall be agreed upon orally, with written
confirmation prepared by such Agent or Agents and mailed to the Operating
Partnership). An Agent's commitment to purchase Notes as principal shall be
deemed to have been made on the basis of the representations and warranties of
the Operating Partnership herein contained and shall be subject to the terms
and conditions herein set forth. Unless the context otherwise requires,
references herein to "this Agreement" shall include the applicable agreement of
one or more Agents to purchase Notes from the Operating Partnership as
principal. Each purchase of Notes, unless otherwise agreed, shall be at a
discount from the principal amount of each such Note equivalent to the
applicable commission set forth in Schedule A hereto. The Agents may engage
the services of any broker or dealer in connection with the resale of the Notes
purchased by them as principal and may allow all or any portion of the discount
received from the Operating Partnership in connection with such purchases to
such brokers or dealers. At the time of each purchase of Notes from the
Operating Partnership by one or more Agents as principal, such Agent or Agents
shall specify the requirements for the officers' certificate, opinions of
counsel and comfort letter, if any, pursuant to Sections 8(b), 8(c) and 8(d)
hereof.
(b) Solicitations as Agent. On the basis of the representations and
warranties herein contained, and subject to the terms and conditions herein set
forth, when agreed by the Operating Partnership and an Agent, such Agent, as an
agent of the Operating Partnership, will use its reasonable efforts to solicit
offers for the purchase of Notes upon the terms set forth in the Prospectus.
The Agents are not authorized to appoint sub-agents with respect to Notes sold
through them as agent. All Notes sold through an Agent as agent will be sold
at 100% of their principal amount unless otherwise agreed upon between the
Operating Partnership and such Agent.
The Operating Partnership reserves the right, in its sole discretion, to
suspend solicitation of offers for the purchase of Notes through an Agent, as
an agent of the Operating Partnership, commencing at any time for any period of
time or permanently. As soon as practicable after receipt of instructions from
the Operating Partnership, such Agent will suspend solicitation of offers for
the purchase of Notes from the Operating Partnership until such time as the
Operating Partnership has advised such Agent that such solicitation may be
resumed.
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The Operating Partnership agrees to pay each Agent a commission, in the
form of a discount, equal to the applicable percentage of the principal amount
of each Note sold by the Operating Partnership as a result of a solicitation
made by such Agent, as an agent of the Operating Partnership, as set forth in
Schedule A hereto.
(c) Administrative Procedures. The purchase price, interest rate or
formula, maturity date and other terms of the Notes specified in Exhibit A
hereto (as applicable) shall be agreed upon between the Operating Partnership
and the applicable Agent(s) and specified in a pricing supplement to the
Prospectus (each, a "Pricing Supplement") to be prepared by the Operating
Partnership in connection with each sale of Notes. Except as otherwise
specified in the applicable Pricing Supplement, the Notes will be issued in
denominations of U.S. $1,000 or any larger amount that is an integral multiple
of U.S. $1,000. The Agents and the Operating Partnership agree to perform, and
the Operating Partnership agrees to cause the Trustee to agree to perform,
their respective duties and obligations specifically provided to be performed
by them in the Administrative Procedures set forth in Exhibit B hereto (the
"Procedures").
SECTION 4. Covenants of the Operating Partnership.
Each of the Operating Partnership and the Company covenants and agrees
with each Agent as follows:
(a) Preparation of Pricing Supplements. The Operating Partnership
will prepare, with respect to any Notes to be sold to or through one or more
Agents pursuant to this Agreement, a Pricing Supplement with respect to such
Notes in a form previously approved by the Agents. The Operating Partnership
will use its best efforts to deliver such Pricing Supplement no later than
11:00 a.m., New York City time, on the business day following the date of the
Operating Partnership's acceptance of the offer for the purchase of such Notes
and will file such Pricing Supplement pursuant to Rule 424(b)(3) under the 1933
Act not later than the close of business of the Commission on the fifth
business day after the date on which such Pricing Supplement is first used.
(b) Notice of Certain Events. The Operating Partnership will notify the
Agents immediately, and confirm such notice in writing, of (i) the
effectiveness of any post-effective amendment to the Registration Statement or
the filing of any amendment or supplement to the Prospectus (other than any
amendment or supplement thereto providing solely for the determination of the
variable terms of the Notes or relating solely to the offering of securities
other than the Notes), (ii) the receipt of any comments from the Commission
with respect to the Registration Statement or the Prospectus, including any
documents incorporated therein by reference, (iii) any request by the
Commission for any amendment to the Registration
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<PAGE> 21
Statement or any amendment or supplement to the Prospectus or for additional
information, (iv) the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement, or of any order preventing or
suspending the use of any preliminary prospectus, or of the initiation of any
proceedings for that purpose or (v) any change in the rating assigned by any
nationally recognized statistical rating organization to the Program or any Debt
Securities (including the Notes) of the Operating Partnership, or the public
announcement by any nationally recognized statistical rating organization that
it has under surveillance or review, with possible negative implications, its
rating of the Program or any such Debt Securities, or the withdrawal by any
nationally recognized statistical rating organization of its rating of the
Program or any such Debt Securities. The Operating Partnership will make every
reasonable effort to prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof at the earliest possible moment.
(c) Filing or Use of Amendments. The Operating Partnership will give the
Agents advance notice of its intention to file or prepare any additional
registration statement with respect to the registration of additional Notes,
any amendment to the Registration Statement (including any filing under Rule
462(b) of the 1933 Act Regulations) or any amendment or supplement to the
prospectus included in the Registration Statement at the time it became
effective or to the Prospectus (other than an amendment or supplement thereto
providing solely for the determination of the variable terms of the Notes or
relating solely to the offering of securities other than the Notes), whether
pursuant to the 1933 Act, the 1934 Act or otherwise, will furnish to the Agents
copies of any such document a reasonable amount of time prior to such proposed
filing or use, as the case may be, and will not file any such document to which
the Agents or counsel for the Agents shall reasonably object.
(d) Delivery of the Registration Statement. The Operating
Partnership has furnished to each Agent and to counsel for the Agents, without
charge, as many conformed copies of the Registration Statement as
originally filed and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein and documents incorporated or
deemed to be incorporated by reference therein) and conformed copies of all
consents and certificates of experts. Copies of the Registration Statement and
each amendment thereto furnished to the Agents will be identical to any
electronically transmitted copies thereof filed with the Commission pursuant to
EDGAR, except to the extent permitted by Regulation S-T.
(e) Delivery of the Prospectus. The Operating Partnership will deliver
to each Agent, without charge, as many copies of each preliminary prospectus as
such Agent may reasonably request, and the Operating Partnership hereby
consents to the use of such copies for purposes permitted by the 1933 Act. The
Operating Partnership will furnish to each Agent, without charge, such number
of copies of the
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Prospectus (as amended or supplemented) as such Agent may reasonably request.
The Prospectus and any amendments or supplements thereto furnished to the Agents
will be identical to any electronically transmitted copies thereof filed with
the Commission pursuant to EDGAR, except to the extent permitted by Regulation
S-T.
(f) Revisions of Prospectus -- Material Changes. Except as otherwise
provided in subsection (m) of this Section 4, if at any time during the term of
this Agreement any event shall occur or condition shall exist as a result of
which it is necessary, in the reasonable opinion of counsel for the Agents or
counsel for the Operating Partnership, to amend the Registration Statement in
order that the Registration Statement will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or to amend or
supplement the Prospectus in order that the Prospectus will not contain an
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein not misleading in light of the circumstances
existing at the time the Prospectus is delivered to a purchaser, or if it shall
be necessary, in the reasonable opinion of either such counsel, to amend the
Registration Statement or amend or supplement the Prospectus in order to comply
with the requirements of the 1933 Act or the 1933 Act Regulations, the Operating
Partnership shall give immediate notice, confirmed in writing, to the Agents to
cease the solicitation of offers for the purchase of Notes in their capacity as
agents and to cease sales of any Notes they may then own as principal, and the
Operating Partnership will promptly prepare and file with the Commission,
subject to Section 4(c) hereof, such amendment or supplement, in form and
substance reasonably satisfactory to counsel for the Agents, as may be necessary
to correct such statement or omission or to make the Registration Statement and
Prospectus comply with such requirements, and the Operating Partnership will
furnish to the Agents, without charge, such number of copies of such amendment
or supplement as the Agents may reasonably request. In addition, the Operating
Partnership will comply with the 1933 Act, the 1933 Act Regulations, the 1934
Act and the 1934 Act Regulations so as to permit the completion of the
distribution of each offering of Notes.
(g) Prospectus Revisions -- Periodic Financial Information. Except as
otherwise provided in subsection (m) of this Section 4, on or prior to the date
on which there shall be released to the general public interim financial
statement information related to the Operating Partnership with respect to each
of the first three quarters of any fiscal year or preliminary financial
statement information with respect to any fiscal year, the Operating
Partnership shall furnish such information to the Agents, confirmed in writing,
and shall cause the Prospectus to include or incorporate by reference financial
information with respect thereto and corresponding information for the
comparable period of the preceding fiscal year, as well as such other
information and explanations as shall be necessary for an understanding thereof
or as shall be required by the 1933 Act or the 1933 Act Regulations.
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(h) Prospectus Revisions -- Audited Financial Information. Except as
otherwise provided in subsection (m) of this Section 4, on or prior to the date
on which there shall be released to the general public financial information
included in or derived from the audited consolidated financial statements of
the Operating Partnership for the preceding fiscal year, the Operating
Partnership shall furnish such information to the Agents, confirmed in writing,
and shall cause the Prospectus to include or incorporate by reference such
audited consolidated financial statements and the report or reports, and
consent or consents to such inclusion or incorporation by reference, of the
independent accountants with respect thereto, as well as such other information
and explanations as shall be necessary for an understanding of such
consolidated financial statements or as shall be required by the 1933 Act or
the 1933 Act Regulations.
(i) Earning Statements. The Operating Partnership will timely file such
reports pursuant to the 1934 Act as are necessary in order to make generally
available to its securityholders as soon as practicable an earning statement
for the purposes of, and to provide the benefits contemplated by, the last
paragraph of Section 11(a) of the 1933 Act.
(j) Use of Proceeds. The Operating Partnership will use the net proceeds
received by it from the issuance and sale of the Notes in the manner specified
in the Prospectus.
(k) Restriction on Offers and Sales of Securities. Unless otherwise
agreed upon between one or more Agents acting as principal and the Operating
Partnership, between the date of the agreement by such Agent(s) to purchase the
related Notes from the Operating Partnership and the Settlement Date with
respect thereto, the Operating Partnership will not, without the prior written
consent of such Agent(s), issue, sell, offer or contract to sell, grant any
option for the sale of, or otherwise dispose of, any debt securities of the
type which could be offered under the Program of the Operating Partnership
(other than the Notes that are to be sold pursuant to such agreement or
commercial paper in the ordinary course of business).
(l) Reporting Requirements. The Operating Partnership, during the period
when the Prospectus is required to be delivered under the 1933 Act or the 1934
Act in connection with sales of the Notes, will file all documents required to
be filed with the Commission pursuant to Sections 13, 14 and 15 of the 1934 Act
within the time periods prescribed by the 1934 Act and the 1934 Act
Regulations.
(m) Suspension of Certain Obligations. The Operating Partnership shall
not be required to comply with the provisions of subsection (f), (g) or (h) of
this Section 4
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during any period from the time (i) the Operating Partnership requests that the
Agents shall have suspended solicitation of offers for the purchase of Notes
in their capacity as agents (provided, however, that such suspension shall be
automatic, unless an Agent is holding Notes as principal as described in clause
(ii) below, from the time the Operating Partnership shall have released to the
general public interim or audited financial information as described in
Sections 4(g) or (h) until the earlier to occur of (a) the filing of a
Quarterly Report on Form 10-Q or an Annual Report on Form 10-K, (b) the filing
of the interim or audited financial information as described in Sections 4(g)
or (h) pursuant to a Current Report on Form 8-K or (c) a verbal request by the
Operating Partnership to any Agent that such Agent resume solicitation of
offers for the purchase of Notes) and (ii) no Agent shall then hold any Notes
purchased from the Operating Partnership as principal less than 180 days prior
to such date (unless, in the discretion of any Agent then holding Notes as
principal, such Agent waives the requirements of this clause (ii)), as the
case may be, until the time the Operating Partnership shall determine that
solicitation of offers for the purchase of Notes should be resumed or an Agent
shall subsequently purchase Notes from the Operating Partnership as principal.
SECTION 5. Payment of Expenses.
The Operating Partnership will pay all expenses incident to the
performance of its obligations under this Agreement, including: (a) the
preparation, filing, printing and delivery of the Registration Statement
(including financial statements and exhibits) as originally filed and all
amendments thereto and any preliminary prospectus, the Prospectus and any
amendments or supplements thereto; (b) the preparation and delivery of this
Agreement, the Indenture and such other documents as may be required in
connection with the offering, purchase, sale and delivery of the Notes; (c) the
preparation, issuance and delivery of the Notes, including any fees and
expenses relating to the eligibility and issuance of Notes in book-entry form
and the cost of obtaining CUSIP or other identification numbers for the Notes;
(d) the reasonable fees and disbursements of the Operating Partnership's
accountants, counsel and other advisors or agents (including any calculation
agent or exchange rate agent) and of the fees and disbursements of the Trustee;
(e) the reasonable fees and disbursements of counsel to the Agents incurred in
connection with the establishment of the Program and incurred from time to time
in connection with the transactions contemplated hereby; (f) the fees charged
by nationally recognized statistical rating organizations for the rating of the
Program and the Notes; (g) the fees and expenses incurred in connection with
any listing of Notes on a securities exchange; (h) the filing fees incident to,
and the reasonable fees and disbursements of counsel to the Agents in
connection with, the review, if any, by the NASD of the terms of the sale of
the Notes; (i) any advertising and other out-of-pocket expenses of the Agents
relating to the Notes reasonably incurred with the approval of the Operating
Partnership; and (j) the preparation, issuance and delivery to the Depository
Trust Company for credit to the accounts of the Agent(s) of any global note
registered in the name of Cede & Co., as nominee for the Depository Trust
Company.
SECTION 6. Conditions of Agents' Obligations.
The obligations of one or more Agents to purchase Notes from the Operating
Partnership as principal and to solicit offers for the purchase of Notes as an
agent of the Operating Partnership, and the obligations of any purchasers of
Notes sold through an Agent as an agent of the Operating Partnership, will be
subject to the accuracy of the representations and warranties on the part of
the Operating Partnership herein contained or contained in any certificate of
an officer of the
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Operating Partnership, the Company or any Subsidiary delivered pursuant to the
provisions hereof, to the performance and observance by the Operating
Partnership of its covenants and other obligations hereunder, and to the
following additional conditions precedent:
(a) (i) The Registration Statement (including any Rule 462(b)
Registration Statement) shall be effective under the 1933 Act and no stop order
suspending the effectiveness of the Registration Statement shall have been
issued under the 1933 Act and no proceedings for that purpose shall have been
instituted or shall be pending or threatened by the Commission, and any
request on the part of the Commission for additional information shall have
been complied with to the reasonable satisfaction of counsel to the Agents,
(ii) the rating assigned by any nationally recognized statistical rating
organization to the Notes or any Debt Securities of the Operating Partnership
as of the applicable Representation Date shall not have been lowered since such
date nor shall any such rating organization have publicly announced that it has
placed the Notes or any Debt Securities of the Operating Partnership on what
is commonly termed a "watch list" for possible downgrading; and (iii) there
shall not have come to an Agent's attention any facts that would cause such
Agent to reasonably believe that the Prospectus, together with the applicable
Prospectus Supplement, at the time it was required to be delivered to
purchasers of the Notes, included an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
therein, in light of the circumstances existing at such time, not misleading.
(b) The Agents shall have received the opinion, dated as of the date
hereof, of King & Spalding, counsel for the Company, the Operating Partnership
and the Subsidiaries, in form and substance satisfactory to counsel for the
Agents, to the effect that:
(i) The Operating Partnership has been duly formed and is
validly existing as a limited partnership under the Georgia Act.
The Operating Partnership has partnership power and authority to
own, lease and operate its properties and to conduct the business
in which it is engaged, and, to counsel's knowledge, is duly
qualified as a foreign partnership in the jurisdictions set forth
in an exhibit to the opinion. All of the issued and outstanding
interests in the Operating Partnership have been duly authorized
and validly issued and fully paid.
(ii) Each of Post Services, Inc., Post Asset Management,
Inc., Post Landscape Services, Inc. and RAM Partners, Inc. and any
Significant Subsidiary within the meaning of Rule 1-02 of
Regulation S-X (collectively, the "Significant Subsidiaries") has
been duly formed and is validly existing and in good standing
under the laws of the jurisdiction of its formation. Each of the
Significant Subsidiaries has the power and authority to own, lease
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<PAGE> 26
and operate its properties and to conduct the business in which it
is engaged, and, to counsel's knowledge, is duly qualified as a
foreign corporation or partnership and is in good standing in the
jurisdictions set forth in an exhibit to the opinion. All of the
issued and outstanding shares of capital stock, LLC interests and
partnership interests of each Significant Subsidiary have been duly
authorized and validly issued, are fully paid and are owned, to
such counsel's knowledge, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity, other than
as set forth in the Registration Statement or Prospectus or the
transfer restrictions set forth in the Option and Transfer
Agreement by and among the Operating Partnership, Post Services,
Inc., John A. Williams and John T. Glover. The ownership of the
shares of capital stock of each Significant Subsidiary is as
described in the Registration Statement or Prospectus.
(iii) The Indenture has been duly qualified under the 1939
Act and has been duly authorized, executed and delivered by the
Operating Partnership and (assuming due authorization, execution
and delivery by the Trustee) constitutes the valid and binding
obligation of the Operating Partnership enforceable against the
Operating Partnership in accordance with its terms, subject to (1)
applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer, or similar laws affecting creditors' rights
generally from time to time in effect and (2) general principles of
equity (regardless of whether such enforceability is considered in
a proceeding at law or in equity). However, we express no opinion
as to the effect on enforceability of (A) requirements that a claim
with respect to any Notes payable other than in U.S. dollars (or a
foreign or composite currency judgment in respect of such claim)
be converted into U.S. dollars at a rate of exchange prevailing on
a date determined pursuant to applicable law or (B) federal or
state law limiting, delaying or prohibiting the making of payments
outside the United States.
(iv) The Notes have been duly and validly authorized by all
necessary action and, when executed, authenticated and delivered in
accordance with the Indenture and against payment therefor as
specified in this Agreement, will be entitled to the benefits of the
Indenture and will be valid and legally binding obligations of the
Operating Partnership enforceable against the Operating Partnership
in accordance with their terms, subject to (1) applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer, or similar laws affecting creditors' rights generally
from time to time in effect and
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<PAGE> 27
(2) general principles of equity (regardless of whether such
enforceability is considered in a proceeding at law or in
equity). However, we express no opinion as to the effect on
enforceability of (A) requirements that a claim with
respect to any Notes payable other than in U.S. dollars (or a
foreign or composite currency judgment in respect of such claim)
be converted into U.S. dollars at a rate of exchange prevailing on
a date determined pursuant to applicable law or (B) federal or
state law limiting, delaying or prohibiting the making of payments
outside the United States.
(v) This Agreement has been duly and validly authorized,
executed and delivered by the Operating Partnership, and the
Operating Partnership has the power and authority to perform its
obligations hereunder.
(vi) The execution and delivery of this Agreement by the
Operating Partnership, and the performance by the Operating
Partnership of its obligations hereunder and the consummation of
the transactions contemplated hereunder, did not, do not and will
not conflict with or constitute a breach or violation of, or
default under: (A) to the knowledge of counsel, any instrument
or agreement filed or incorporated by reference as an exhibit to
the Registration Statement to which the Operating Partnership
is a party or by which it or any of its respective properties or
other assets or any Property may be bound or subject; (B) the
certificate of limited partnership or partnership agreement of the
Operating Partnership; or (C) to the knowledge of counsel, any
applicable law, rule, order, administrative regulation or
administrative or court decree, except that no opinion is expressed
under this clause (C) as to the Agreement with respect to federal,
state or foreign securities laws.
(vii) The Registration Statement is effective under the 1933
Act and, to counsel's knowledge based solely upon telephonic
confirmation from the staff of the Commission, no stop order
suspending the effectiveness of the Registration Statement has been
issued under the 1933 Act and no proceedings for that purpose have
been initiated or threatened by the Commission.
(viii) The Notes and the Indenture conform in all material
respects to the descriptions thereof contained in the Prospectus.
(ix) No consent, approval, authorization or order of, or
qualification with, any governmental body or agency and no consent,
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<PAGE> 28
approval, or authorization of any person other than the Operating
Partnership is required for the performance by the Operating
Partnership of its obligations under this Agreement, the Indenture
or the Notes, except such as may be required under the 1933 Act,
the 1939 Act, and the securities, Blue Sky or real estate
syndication laws of various states or the rules of the NASD in
connection with the offer and sale of the Notes.
(x) To the knowledge of counsel, there is no action, suit or
proceeding before or by any court or governmental agency or body,
domestic or foreign, now pending or threatened against or affecting
the Company, the Operating Partnership, any Significant Subsidiary
or any material property of the Company that is required to be
disclosed in the Registration Statement (other than as disclosed
therein) or that, if determined adversely to the Company, the
Operating Partnership, any Significant Subsidiary or any such
property, could reasonably be expected to materially and adversely
affect the consummation of the transactions contemplated by this
Agreement. To the knowledge of counsel, there are no contracts or
documents of the Operating Partnership or any Significant
Subsidiary which are required by the 1933 Act, or by the 1933 Act
Regulations, the 1934 Act, or the 1934 Act Regulations to be filed
as exhibits to the Registration Statement, the Prospectus or the
documents incorporated by reference which have not been so filed as
exhibits as required.
(xi) None of the Company, the Operating Partnership or any
Subsidiary is required to be registered as an investment company
under the 1940 Act.
(xii) The information (A) in the Prospectus and the applicable
Prospectus Supplement under the headings "Description of Debt
Securities," "Description of Notes" and "Certain United States
Federal Income Tax Considerations" and (B) in the Operating
Partnership's Form 10 under "Recent Sales of Unregistered
Securities," to the extent that it constitutes matters of law or
legal conclusions has been reviewed by such counsel, is correct and
presents fairly the information required to be disclosed therein.
(xiii) At the time the Registration Statement became effective
and at the Representation Date, the Registration Statement and
Prospectus (except for financial statements and supporting
schedules and other financial information and data included or
incorporated by reference therein or the Statement of Eligibility,
as to which such counsel need not express any opinion), excluding
the documents incorporated by reference therein, complied
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as to form in all material respects with the requirements of the
1933 Act, the 1939 Act and the 1933 Act Regulations.
(xiv) Each document heretofore filed pursuant to the 1934 Act
and incorporated or deemed to be incorporated by reference in the
Prospectus (except for financial statements and supporting
schedules and other financial information and data included or
incorporated by reference therein, as to which such counsel need
not express any opinion) complied as to form in all material
respects with the requirements of the 1934 Act and the applicable
1934 Act Regulations in effect at the date of their respective
filings.
(xv) The Company was organized and has operated in conformity
with the requirements for qualification and taxation as a REIT for
each of its taxable years beginning with the year ended December
31, 1993, and its current organization and method of operation
should enable it to continue to meet the requirements for
qualification and taxation as a REIT.
(xvi) The Operating Partnership and each Significant
Subsidiary that is a partnership ("Subsidiary Partnership") are
properly classified as partnerships, and not as corporations or as
associations taxable as corporations, for Federal income tax
purposes throughout the period from July 22, 1993 through the date
hereof, or, in the case of any Subsidiary Partnerships that have
terminated, through the date of termination of such Subsidiary
Partnerships.
(c) The Agents shall have received the opinion, dated as
of the date hereof, of Hogan & Hartson L.L.P., counsel for the Agents,
with respect to the matters set forth in (i) (first sentence only),
(iii), (iv), (v), (vii), (viii), (xii) (solely with respect to
information set forth in "Description of Debt Securities" and "Description
of Notes"), and (xiii) of Section 6(b) above.
(d) In rendering their opinions required by Sections 6(b) and 6(c),
respectively, King & Spalding and Hogan & Hartson L.L.P. shall each
additionally state (which shall not constitute an opinion) that no facts
have come to the attention of such counsel which cause them to believe
that the Registration Statement or any amendment thereto (except for
financial statements and supporting schedules and other financial
information and data included therein or omitted therefrom, or the
Statement of Eligibility, as to which such counsel need not express any
view), as of the time it became effective under the 1933 Act (and as of
the time of filing of the Operating Partnership's Annual Report on Form
10-K, if filed subsequent to the time of effectiveness) or at the date of
the Agreement, contained an untrue statement
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of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, or that the Prospectus or any amendment or supplement
thereto (except as aforesaid) as of the date of this Agreement, contained
an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading.
In giving their opinions required by Section 6(b) and 6(c), such
counsel (A) may rely as to all matters of fact, upon certificates and
written statements of officers and employees of and accountants for the
Operating Partnership and the Company and (B) may rely as to the
qualification and good standing of each of the Operating Partnership or
any of the Subsidiaries to do business in any state or jurisdiction, upon
certificates of appropriate government officials or opinions of counsel
in such jurisdictions, which opinions shall be in form and substance
satisfactory to counsel for the Agents. In giving their belief required
in this Section 6(d), such counsel may state that their belief is based
upon their participation in the preparation of the Registration Statement
and Prospectus and any amendments and supplements thereto and review and
discussion of the contents thereof.
(e) On the date hereof, there shall not have been, since the respective
dates as of which information is given in the Prospectus, any material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Operating Partnership and
its Subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, and the Agents shall have received a certificate
of the President or a Vice President of the Company and of the chief financial
officer and chief accounting officer of the Company, dated as of the date
hereof, to the effect that (i) there has been no such material adverse change,
(ii) the representations and warranties of the Operating Partnership herein
contained are true and correct with the same force and effect as though
expressly made at and as of the date of such certificate, (iii) the Operating
Partnership has complied with all agreements and satisfied all conditions on
its part to be performed or satisfied at or prior to the date of such
certificate, and (iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been instituted or are pending or, to the best of such officers' knowledge, are
threatened by the Commission.
(f) The Agents shall have received a letter from Price Waterhouse LLP,
dated as of the date hereof, in form and substance satisfactory to the Agents,
to the effect that: (i) they are independent accountants with respect to the
Company, the Operating Partnership and their Subsidiaries within the meaning of
the 1933 Act and the 1933 Act Regulations; (ii) it is their opinion that the
consolidated financial statements and supporting schedules included or
incorporated by reference in the
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Registration Statement and the Prospectus and covered by their opinions
therein comply in form in all material respects with the applicable accounting
requirements of the 1933 Act and the 1933 Act Regulations; (iii) based upon
limited procedures set forth in detail in such letter (which shall include,
without limitation, the procedures specified by the American Institute of
Certified Public Accountants for a review of interim financial information as
described in SAS No. 71, Interim Financial Information, with respect to the
unaudited financial statements of the Company and the Operating Partnership
included or incorporated by reference in the Registration Statement), nothing
has come to their attention which causes them to believe that, (A) any material
modifications should be made to the unaudited condensed financial statements
included or incorporated by reference in the Registration Statement for them
to be in conformity with GAAP or (B) the unaudited condensed financial
statements included or incorporated by reference in the Registration Statement
do not comply as to form in all material respects with the applicable
accounting requirements of the 1934 Act as it applies to Form 10-Q and the
related published rules and regulations or (C) the date of the latest available
consolidated interim financial data, there has been any change in the Common
Stock of the Company or partnership interests in the Operating Partnership or
in the consolidated long term debt of the Company and the Operating Partnership
or any decrease in the net assets of the Company, as compared with the amounts
shown in the most recent consolidated balance sheet included or incorporated by
reference in the Registration Statement and the Prospectus or, during the
period from the date of the most recent consolidated statement of operations
included or incorporated by reference in the Registration Statement and the
Prospectus to the date of the latest available consolidated interim financial
data, there were any decreases, as compared with the corresponding period
in the preceding year, in consolidated revenues, or decrease in net income or
net income per share of common stock of the Company and the Operating
Partnership, as applicable, except in all instances for changes, increases or
decreases which the Registration Statement and the Prospectus disclose have
occurred or may occur; (iv) based upon inquiries of certain officials of the
Company who have responsiblity for financial and accounting matters, nothing
came to our attention that (A) there was any change at a specified date not
more than five days prior to the date hereof in the capital stock, increase in
debt or any decreases in consolidated net assets, stockholders' equity and
accumulated earnings, partners' equity, as applicable, of the Company as
compared with amounts shown on the most recent consolidated balance sheets
included or incorporated by reference in the Registration Statement and the
Prospectus, or (B) for the period from the date of the latest available
consolidated interim financial data to a specified date not more than five
days prior to the date hereof, there were any decreases, as compared with the
corresponding period in the preceding year, in consolidated revenues or in the
total amount of income before extraordinary items or of net income, except in
all instances for changes or decreases which the Registration Statement and
Prospectus discloses have occurred or may occur and (v) in addition to the
audit referred to in their opinions and the limited procedures referred to in
clause (iii) above, they have carried out certain specified procedures with
respect to certain amounts, percentages and financial and statistical
information which are included in the Registration Statement and the Prospectus
and which are specified by you, and have found such amounts, percentages and
financial and statistical information to be in agreement with relevant
accounting, financial and other records of the Company and the Operating
Partnership and their Subsidiaries identified in such letter.
(g) On the date hereof, counsel to the Agents shall have been furnished
with such documents and opinions as such counsel may require for the purpose of
enabling such counsel to pass upon the issuance and sale of Notes as herein
contemplated, or in order to evidence the accuracy of any of the
representations and warranties, or the
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fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Operating Partnership in connection with the issuance and sale of
Notes as herein contemplated shall be satisfactory in form and substance to
the Agents and to counsel to the Agents.
(h) If any condition specified in this Section 6 shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be
terminated by the applicable Agent or Agents by notice to the Operating
Partnership at any time and any such termination shall be without liability of
any party to any other party except as provided in Section 5 hereof and except
that Sections 9, 10, 11, 15 and 16 hereof shall survive any such termination
and remain in full force and effect.
SECTION 7. Delivery of and Payment for Notes Sold through an Agent as Agent.
Delivery of Notes sold through an Agent as an agent of the Operating
Partnership shall be made by the Operating Partnership to such Agent for the
account of any purchaser only against payment therefor in immediately available
funds. In the event that a purchaser shall fail either to accept delivery of
or to make payment for a Note on the date fixed for settlement, such Agent
shall promptly notify the Operating Partnership and deliver such Note to the
Operating Partnership and, if such Agent has theretofore paid the Operating
Partnership for such Note, the Operating Partnership will promptly return such
funds to such Agent. If such failure has occurred for any reason other than
default by such Agent in the performance of its obligations hereunder, the
Operating Partnership will reimburse such Agent on an equitable basis for its
loss of the use of the funds for the period such funds were credited to the
Operating Partnership's account.
SECTION 8. Additional Covenants of the Operating Partnership.
The Operating Partnership further covenants and agrees with each Agent as
follows:
(a) Reaffirmation of Representations and Warranties. Each acceptance by
the Operating Partnership of an offer for the purchase of Notes (whether to one
or more Agents as principal or through an Agent as agent), and each delivery of
Notes (whether to one or more Agents as principal or through an Agent as
agent), shall be deemed to be an affirmation that the representations and
warranties of the Operating Partnership herein contained and contained in any
certificate theretofore delivered to the Agents pursuant hereto are true and
correct at the time of such acceptance or sale, as the case may be, and an
undertaking that such representations and warranties will be true and correct
at the time of delivery to such Agent(s) or to the purchaser or its agent, as
the case may be, of the Notes relating to such acceptance or sale, as the case
may be, as though made at and as of each such time (it being understood that
such representations and warranties shall relate to the Registration
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Statement and Prospectus as amended and supplemented to each such time, other
than an amendment or supplement relating to the offering of securities other
than the Notes).
(b) Subsequent Delivery of Certificates. Each time that (i) the
Operating Partnership shall file a Form 10-K or Form 10-Q with the Commission,
unless otherwise waived by the Agents, (ii) the Registration Statement or the
Prospectus shall be amended or supplemented (other than by an amendment or
supplement providing solely for the determination of the variable terms of the
Notes, the filing of a Form 10-K or Form 10-Q with the Commission or relating
solely to the offering of securities other than the Notes), if requested in
writing by the Agents or Agents (iii) (if requested in writing by the Agent or
Agents) the Operating Partnership sells Notes to one or more Agents as
principal or (iv) the Operating Partnership sells Notes in a form not
previously certified to the Agents by the Operating Partnership, the Operating
Partnership shall furnish or cause to be furnished to the Agent(s) forthwith a
certificate dated the date of filing with the Commission or the date of
effectiveness of such amendment or supplement, as applicable, or the date of
such sale, as the case may be, in form satisfactory to the Agent(s) to the
effect that the statements contained in the certificate referred to in Section
6(e) hereof which were last furnished to the Agents are true and correct at the
time of the filing or effectiveness of such amendment or supplement, as
applicable, or the time of such sale, as the case may be, as though made at and
as of such time (except that such statements shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented to such
time) or, in lieu of such certificate, a certificate of the same tenor as the
certificate referred to in Section 6(e) hereof, modified as necessary to relate
to the Registration Statement and the Prospectus as amended and supplemented to
the time of delivery of such certificate (it being understood that, in the case
of clause (iii) above, any such certificate shall also include a certification
that there has been no material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Operating Partnership and its Subsidiaries considered as one enterprise since
the date of the agreement by such Agent(s) to purchase Notes from the Operating
Partnership as principal).
(c) Subsequent Delivery of Legal Opinions. Each time that (i) the
Operating Partnership shall file a Form 10-K or Form 10-Q with the Commission,
unless otherwise waived by the Agents, (ii) the Registration Statement or the
Prospectus shall be amended or supplemented (other than by an amendment or
supplement providing solely for the determination of the variable terms of the
Notes, the filing of a Form 10-K or Form 10-Q with the Commission or relating
solely to the offering of securities other than the Notes), if requested in
writing by the Agent or Agents (iii) (if requested in writing by the Agent or
Agents) the Operating Partnership sells Notes to one or more Agents as
principal or (iv) the Operating Partnership sells Notes in a form not
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previously certified to the Agents by the Operating Partnership, the Operating
Partnership shall furnish or cause to be furnished forthwith to the Agent(s)
and to counsel to the Agents the written opinion of King & Spalding, counsel to
the Operating Partnership, or other counsel reasonably satisfactory to the
Agent(s), dated the date of filing with the Commission or the date of
effectiveness of such amendment or supplement, as applicable, or the date of
such sale, as the case may be, in form and substance reasonably satisfactory
to the Agent(s), of the same tenor as the opinion referred to in Section 6(b)
hereof, but modified, as necessary, to relate to the Registration Statement and
the Prospectus as amended and supplemented to the time of delivery of such
opinion or, in lieu of such opinion, counsel last furnishing such opinion to
the Agents shall furnish the Agent(s) with a letter substantially to the
effect that the Agent(s) may rely on such last opinion to the same extent as
though it was dated the date of such letter authorizing reliance (except that
statements in such last opinion shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of
delivery of such letter authorizing reliance); except for the opinion required
under Section 6(b)(xv).
(d) Subsequent Delivery of Comfort Letters. Each time that (i) the
Operating Partnership shall file a Form 10-K or a Form 10-Q with the
Commission, unless otherwise waived by the Agents, (ii) the Registration
Statement or the Prospectus shall be amended or supplemented (other than by an
amendment or supplement providing solely for the determination of the variable
terms of the Notes, the filing of a Form 10-K or Form 10-Q with the Commission
or relating solely to the offering of securities other than the Notes) if
requested in writing by the Agent or Agents or (iii) (if requested in writing by
the Agent or Agents) the Operating Partnership sells Notes to one or more
Agents as principal, the Operating Partnership shall cause Price Waterhouse
L.L.P. or such other accounting firm that has certified the financial
statements and supporting schedules included in or incorporated by reference
into the Registration Statement and the Prospectus to the Agent(s) a letter,
dated the date of filing with the Commission or the date of effectiveness of
such amendment or supplement, as applicable, or the date of such sale, as the
case may be, in form reasonably satisfactory to the Agent(s), of the same tenor
as the letter referred to in Section 6(f) hereof but modified to relate to the
Registration Statement and Prospectus as amended and supplemented to the date
of such letter.
SECTION 9. Indemnification.
(a) Indemnification of the Agents. The Operating Partnership agrees to
indemnify and hold harmless each Agent and each person, if any, who controls
such Agent within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act and any director, officer, employee or affiliate thereof, as
follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including the Rule 430A information
deemed to be a part
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thereof, if applicable, or the omission or alleged omission therefrom of
a material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue statement
or alleged untrue statement of a material fact included in any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a material
fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, provided that (subject to Section
9(d) hereof) any such settlement is effected with the written consent of
the Operating Partnership; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by such Agent),
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement
or omission, to the extent that any such expense is not paid under
subparagraph (i) or (ii) above;
provided, however, that this indemnity shall not apply to any loss, liability,
claim, damage or expense to the extent arising out of any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished to the Operating Partnership by
the Agents expressly for use in the Registration Statement (or any amendment
thereto), including the Rule 430A information deemed to be a part thereof, if
applicable, or any preliminary prospectus or the Prospectus (or any amendment
or supplement thereto).
(b) Indemnification of Operating Partnership, Directors and Officers.
Each Agent severally agrees to indemnify and hold harmless the Operating
Partnership, its directors, officers, employees and affiliates, and each
person, if any, who controls the Operating Partnership within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act against any and all
loss, liability, claim, damage and expense described in the indemnity contained
in Section 9(a) hereof, as incurred, but only with respect to untrue statements
or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto), including the Rule 430A
information deemed to be a part thereof, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) in
reliance
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upon and in conformity with written information furnished to the Operating
Partnership by the Agents expressly for use in the Registration Statement (or
any amendment thereto) or such preliminary prospectus or the Prospectus (or
any amendment or supplement thereto).
(c) Actions Against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve
such indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this
indemnity agreement. In the case of parties indemnified pursuant to Section
9(b) above, counsel to the indemnified parties shall be selected by the
Operating Partnership. An indemnifying party may participate at its own
expense in the defense of such action; provided, however, that counsel to the
indemnifying party shall not (except with the consent of the indemnified party)
also be counsel to the indemnified party. In no event shall the indemnifying
parties be liable for fees and expenses of more than one counsel (in addition
to any one local counsel) separate from their own counsel for all indemnified
parties in connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances. No indemnifying party shall, without the prior written consent
of the indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 9 or 10 hereof (whether or not the indemnified parties are
actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from
all liability arising out of such litigation, investigation, proceeding or
claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 9(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
36
<PAGE> 37
SECTION 10. Contribution.
If the indemnification provided for in Section 9 hereof is for any reason
unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, liabilities, claims, damages or expenses referred to therein,
then each indemnifying party shall contribute to the aggregate amount of such
losses, liabilities, claims, damages and expenses incurred by such indemnified
party, as incurred, (i) in such proportion as is appropriate to reflect the
relative benefits received by the Operating Partnership, on the one hand, and
the applicable Agent(s), on the other hand, from the offering of the Notes that
were the subject of the claim for indemnification or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion
as is appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Operating Partnership, on
the one hand, and the applicable Agent(s), on the other hand, in connection
with the statements or omissions which resulted in such losses, liabilities,
claims, damages or expenses, as well as any other relevant equitable
considerations.
The relative benefits received by the Operating Partnership, on the one
hand, and the applicable Agent(s), on the other hand, in connection with the
offering of the Notes that were the subject of the claim for indemnification
shall be deemed to be in the same respective proportions as the total net
proceeds from the offering of such Notes (before deducting expenses) received
by the Operating Partnership and the total discount or commission received by
each applicable Agent, as the case may be, bears to the aggregate initial
offering price of such Notes.
The relative fault of the Operating Partnership, on the one hand, and the
applicable Agent(s), on the other hand, shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Operating Partnership or by the applicable
Agent(s) and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Operating Partnership and the Agents agree that it would not be just
and equitable if contribution pursuant to this Section 10 were determined by
pro rata allocation (even if the applicable Agent(s) were treated as one entity
for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to above in this Section 10.
The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 10 shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever
37
<PAGE> 38
based upon any applicable untrue or alleged untrue statement or omission or
alleged omission.
Notwithstanding the provisions of this Section 10, no Agent shall be
required to contribute any amount in excess of the amount by which the total
discount or commission received by such Agent in connection with the offering
of the Notes that were the subject of the claim for indemnification exceeds the
amount of any damages which such Agent has otherwise been required to pay by
reason of any applicable untrue or alleged untrue statement or omission or
alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
In addition, in connection with an offering of Notes purchased from the
Operating Partnership by two or more Agents as principal, the respective
obligations of such Agents to contribute pursuant to this Section 10 are
several, and not joint, in proportion to the aggregate principal amount of
Notes that each such Agent has agreed to purchase from the Operating
Partnership.
For purposes of this Section 10, each person, if any, who controls an
Agent within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act shall have the same rights to contribution as such Agent, and each
person, if any, who controls the Operating Partnership within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same
rights to contribution as the Operating Partnership.
SECTION 11. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement
or in certificates of officers of the Company or the Operating Partnership
submitted pursuant hereto or thereto shall remain operative and in full force
and effect, regardless of any termination of this Agreement or investigation
made by or on behalf of any of the Agents or any controlling person of an
Agent, or by or on behalf of the Company and the Operating Partnership, and
shall survive each delivery of and payment for the Notes.
38
<PAGE> 39
SECTION 12. Termination.
(a) Termination of this Agreement. This Agreement (excluding any
agreement by one or more Agents to purchase Notes from the Operating
Partnership as principal) may be terminated for any reason, at any time by
either the Operating Partnership or an Agent, as to itself, upon the giving of
30 days' prior written notice of such termination to the other party hereto,
but without prejudice to any rights, obligations or liabilities of any party
hereto accrued or incurred prior to such termination.
(b) Termination of Agreement to Purchase Notes as Principal. The
applicable Agent(s) may terminate any agreement by such Agent(s) to purchase
Notes from the Operating Partnership as principal, immediately upon notice to
the Operating Partnership, at any time prior to the Settlement Date relating
thereto, if (i) there has been, since the date of such agreement or since the
respective dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs, assets or business prospects of the Company, the
Operating Partnership and their Subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, or (ii) there has
occurred any material adverse change in the financial markets in the United
States or, if the Notes are denominated or payable in, or indexed to, one or
more foreign or composite currencies, in the international financial markets,
or any outbreak of hostilities or escalation thereof or other calamity or
crisis or any change or development involving a prospective change in national
or international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of such Agent(s),
impracticable to market such Notes or enforce contracts for the sale of such
Notes, or (iii) trading in any securities of the Company has been suspended or
limited by the Commission or the New York Stock Exchange, Inc. or if trading
generally on the New York Stock Exchange or the American Stock Exchange has
been suspended or limited, or minimum or maximum prices for trading have been
fixed, or maximum ranges for prices have been required, by either of said
exchanges or by order of the Commission or any other governmental authority, or
(iv) a banking moratorium has been declared by either Federal or New York
authorities or if the Notes are denominated or payable in, or indexed to, one
or more foreign or composite currencies, by the relevant authorities in the
related country or countries, or (v) the rating assigned by any nationally
recognized statistical rating organization to the Program or any Debt
Securities (including the Notes) of the Operating Partnership as of the date of
such agreement shall have been lowered since such date or if any such rating
organization shall have publicly announced that it has placed any Preferred
Stock of the Company, the Program or any such debt securities of the Operating
Partnership on what is commonly termed a "watch list" for possible downgrading.
39
<PAGE> 40
(c) General. In the event of any such termination, such termination
shall be without liability of any party to any other party except that (i) the
Agents shall be entitled to any commissions earned in accordance with the third
paragraph of Section 3(b) hereof, (ii) if at the time of termination (a) any
Agent shall own any Notes purchased by it from the Operating Partnership as
principal or (b) an offer to purchase any of the Notes has been accepted by the
Operating Partnership but the time of delivery to the purchaser or his agent of
such Notes relating thereto has not occurred, the covenants set forth in
Sections 4 and 8 hereof shall remain in effect until the earlier of (A) such
Notes are so resold or delivered or (B) 180 days, as the case may be, and (iii)
the covenant set forth in Section 4(i) hereof, the provisions of Section 5
hereof, the indemnity and contribution agreements set forth in Sections 9 and
10 hereof, and the provisions of Sections 11, 15 and 16 hereof shall survive
such termination and remain in full force and effect.
SECTION 13. Default by One or More of the Agents.
If the Operating Partnership and two or more Agents enter into an
agreement pursuant to which such Agents agree to purchase Notes from the
Operating Partnership as principal and one or more of such Agents shall fail at
the Settlement Date to purchase the Notes which it or they are obligated to
purchase (the "Defaulted Notes"), then the nondefaulting Agents shall have the
right, within 24 hours thereafter, to make arrangements for one of them or one
or more other Agents to purchase all, but not less than all, of the Defaulted
Notes in such amounts as may be agreed upon and upon the terms herein set
forth; provided, however, that if such arrangements shall not have been
completed within such 24-hour period, then:
(i) if the aggregate principal amount of Defaulted Notes does not
exceed 10% of the aggregate principal amount of Notes to be so purchased
by all of such Agents on the Settlement Date, the nondefaulting Agents
shall be obligated, severally and not jointly, to purchase the full
amount thereof in the proportions that their respective initial
underwriting obligations bear to the underwriting obligations of all
nondefaulting Agents, or
(ii) if the aggregate principal amount of Defaulted Notes exceeds
10% of the aggregate principal amount of Notes to be so purchased by all
of such Agents on the Settlement Date, such agreement shall terminate
without liability on the part of any nondefaulting Agent.
No action taken pursuant to this paragraph shall relieve any defaulting Agent
from liability in respect of its default.
In the event of any such default which does not result in a termination of
such agreement, either the nondefaulting Agents or the Operating Partnership
shall have the right to postpone the Settlement Date for a period not exceeding
seven days in
40
<PAGE> 41
order to effect any required changes in the Registration Statement or the
Prospectus or in any other documents or arrangements.
SECTION 14. Notices.
All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given if mailed or transmitted by any
standard form of telecommunication. Notices to the Agents shall be directed to
Merrill Lynch at Merrill Lynch World Headquarters, World Financial Center,
North Tower - 10th Floor, New York, New York 10281- 1310, attention: MTN
Product Management and J.P. Morgan Securities Inc., 60 Wall Street, Medium-Term
Note Desk - 3rd Floor, New York, New York 10260 and notices to the Company and
the Operating Partnership shall be directed to them at 3350 Cumberland Circle,
N.W., Suite 2200, Atlanta, Georgia 30339, attention: John T. Glover,
President.
SECTION 15. Parties.
This Agreement shall inure to the benefit of and be binding upon the
Agents and the Operating Partnership and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the parties hereto and their
respective successors and the controlling persons, officers and directors
referred to in Sections 9 and 10 hereof and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement
and all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the parties hereto and their respective successors, and
said controlling persons, officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation.
No purchaser of Notes from any Agent shall be deemed to be a successor by
reason merely of such purchase.
SECTION 16. GOVERNING LAW; FORUM.
THIS AGREEMENT AND ALL THE RIGHTS AND OBLIGATIONS OF THE PARTIES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES. ANY SUIT, ACTION OR PROCEEDING
BROUGHT BY THE OPERATING PARTNERSHIP AGAINST ANY AGENT IN CONNECTION WITH OR
ARISING UNDER THIS AGREEMENT SHALL BE BROUGHT SOLELY IN THE STATE OR FEDERAL
COURT OF APPROPRIATE JURISDICTION LOCATED IN THE BOROUGH OF MANHATTAN, THE CITY
OF NEW YORK.
41
<PAGE> 42
SECTION 17. Effect of Headings.
The Article and Section headings herein are for convenience only and shall
not affect the construction hereof.
SECTION 18. Counterparts.
This Agreement may be executed in one or more counterparts and, if
executed in more than one counterpart, the executed counterparts hereof shall
constitute a single instrument.
If the foregoing is in accordance with the Agents' understanding of our
agreement, please sign and return to the Operating Partnership a counterpart
hereof, whereupon this Distribution Agreement, along with all counterparts,
will become a binding agreement among the Agents and the Operating Partnership
in accordance with its terms.
Very truly yours,
POST APARTMENT HOMES, L.P.
By: Post Properties, Inc., its general
partner
By:/s/ John T. Glover
----------------------------------
Name: John T. Glover
Title: Chief Operating
Officer
CONFIRMED AND ACCEPTED,
AS OF THE DATE FIRST ABOVE WRITTEN:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:/s/ Scott Primrose
----------------------------------
Authorized Signatory
J.P. MORGAN SECURITIES INC.
By:/s/ Keysha Bailey
----------------------------------
Authorized Signatory
42
<PAGE> 43
EXHIBIT A
The following terms, if applicable, shall be agreed to by one or more
Agents and the Operating Partnership in connection with each sale of Notes:
Principal Amount: $_______
(or principal amount of foreign currency or composite currency)
Interest Rate or Formula:
If Fixed Rate Note,
Interest Rate:
Interest Payment Dates:
If Floating Rate Note,
Interest Rate Basis(es):
If LIBOR,
o LIBOR Reuters Page:
o LIBOR Telerate Page:
Designated LIBOR Currency:
If CMT Rate,
Designated CMT Telerate Page:
Designated CMT Maturity Index:
o Weekly Average
o Monthly Average
Index Maturity:
Spread and/or Spread Multiplier, if any:
Initial Interest Rate, if any:
Initial Interest Reset Date:
Interest Reset Dates:
Interest Payment Dates:
Default Rate:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Fixed Rate Commencement Date, if any:
Fixed Interest Rate, if any:
Day Count Convention:
Calculation Agent:
Redemption Provisions:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction, if any:
Repayment Provisions:
Optional Repayment Date(s):
Original Issue Date:
Stated Maturity Date:
Specified Currency:
Exchange Rate Agent:
Authorized Denomination:
<PAGE> 44
Purchase Price: ___%, plus accrued interest, if any, from ___________
Issue Price:
Price to Public: ___%, plus accrued interest, if any,
from ___________
Settlement Date and Time:
Additional/Other Terms:
Also, in connection with the purchase of Notes from the Operating Partnership
by one or more Agents as principal, agreement as to whether the following will
be required:
Officers' Certificate pursuant to Section 8(b) of the Distribution
Agreement.
Legal Opinions pursuant to Section 8(c) of the Distribution Agreement.
Comfort Letter pursuant to Section 8(d) of the Distribution Agreement.
Stand-off Agreement pursuant to Section 4(k) of the Distribution
Agreement.
<PAGE> 45
SCHEDULE A
As compensation for the services of the Agents hereunder, the Operating
Partnership shall pay the applicable Agent, on a discount basis, a commission
for the sale of each Note equal to the principal amount of such Note multiplied
by the appropriate percentage set forth below:
<TABLE>
<CAPTION>
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
- --------------- ----------------
<S> <C>
From 9 months to less than 1 year .................... .125%
From 1 year to less than 18 months ................... .150
From 18 months to less than 2 years .................. .200
From 2 years to less than 3 years .................... .250
From 3 years to less than 4 years .................... .350
From 4 years to less than 5 years .................... .450
From 5 years to less than 6 years .................... .500
From 6 years to less than 7 years .................... .550
From 7 years to less than 10 years ................... .600
From 10 years to less than 15 years .................. .625
From 15 years to less than 20 years .................. .700
From 20 years to 30 years ............................ .750
Greater than 30 years ................................ *
</TABLE>
- ----------------------
*As agreed to by the Operating Partnership and the applicable Agent at the time
of sale.
<PAGE> 46
EXHIBIT B
POST APARTMENT HOMES, L.P.
ADMINISTRATIVE PROCEDURES
FOR FIXED RATE AND FLOATING RATE MEDIUM-TERM NOTES
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
(Dated as of January 29, 1997)
Medium-Term Notes Due Nine Months or More from Date of Issue (the "Notes")
are to be offered on a continuing basis by Post Apartment Homes, L.P., a Georgia
limited partnership (the "Operating Partnership"), to or through Merrill Lynch
& Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated and J.P. Morgan
Securities Inc. (each, an "Agent" and, collectively, the "Agents") pursuant to
a Distribution Agreement, dated January 29, 1997 (the "Distribution
Agreement"), by and among the Operating Partnership and the Agents. The
Distribution Agreement provides both for the sale of Notes by the Operating
Partnership to one or more of the Agents as principal for resale to investors
and other purchasers and for the sale of Notes by the Operating Partnership
directly to investors (as may from time to time be agreed to by the Operating
Partnership and the related Agent or Agents), in which case each such Agent
will act as an agent of the Operating Partnership in soliciting offers to
purchase the Notes.
Unless otherwise agreed by the related Agent or Agents and the Operating
Partnership, Notes will be purchased by the related Agent or Agents as
principal. Such purchases will be made in accordance with terms agreed upon by
the related Agent or Agents and the Operating Partnership (which terms shall be
agreed upon orally, with written confirmation prepared promptly by the related
Agent or Agents and mailed promptly to the Operating Partnership). If agreed
upon by any Agent or Agents and the Operating Partnership, the Agent or Agents,
acting solely as agent or agents for the Operating Partnership and not as
principal, will use reasonable efforts to solicit offers to purchase the Notes.
Only those provisions in these Administrative Procedures that are applicable
to the particular role to be performed by the related Agent or Agents shall
apply to the offer and sale of the relevant Notes.
The Notes will be issued as a series of debt securities under an
Indenture, dated as of September 25, 1996, as amended, supplemented or modified
from time to time (the "Indenture"), between the Operating Partnership and
SunTrust Bank, Atlanta, as trustee (together with any successor in such
capacity, the "Trustee"). Post Properties, Inc., a Georgia corporation (the
"Company") and the Operating Partnership have filed a Registration Statement
with the Securities and Exchange
<PAGE> 47
Commission (the "Commission") registering, among other things, debt securities
of the Operating Partnership (which includes the Notes) (the "Registration
Statement"). The most recent base prospectus deemed part of the Registration
Statement, as supplemented with respect to the Notes, is herein referred to as
"Prospectus." The most recent supplement to the Prospectus setting forth the
purchase price, interest rate or formula, maturity date and other terms of the
Notes (as applicable) is herein referred to as the "Pricing Supplement."
The Notes will either be issued (a) in book-entry form and represented by
one or more fully registered global Notes (each, a "Global Note") delivered to
the Trustee, as custodian for The Depository Trust Company ("DTC"), and
recorded in the book-entry system maintained by DTC, or (b) in certificated
form (each, a "Certificated Note") delivered to the investor or other purchaser
thereof or a person designated by such investor or other purchaser.
General procedures relating to the issuance of all Notes are set forth in
Part I hereof. Additionally, Notes issued in book-entry form will be issued in
accordance with the procedures set forth in Part II hereof and Certificated
Notes will be issued in accordance with the procedures set forth in Part III
hereof. Capitalized terms used but not otherwise defined herein shall have the
meanings ascribed thereto in the Indenture or the Notes, as the case may be.
PART I: PROCEDURES OF GENERAL
APPLICABILITY
Date of Issuance/
Authentication: Each Note will be dated as of the date of its
authentication by the Trustee. Each Note shall also
bear an original issue date (each, an "Original
Issue Date"). The Original Issue Date shall remain
the same for all Notes subsequently issued upon
transfer, exchange or substitution of an original
Note regardless of their dates of authentication.
Maturities: Each Note will mature on a date nine months or more
from its Original Issue Date (the "Stated Maturity
Date") selected by the investor or other purchaser
and agreed to by the Operating Partnership.
Registration: Unless otherwise specified in the applicable Pricing
Supplement, Notes will be issued only in fully
registered form.
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<PAGE> 48
Denominations: Unless otherwise specified in the applicable Pricing
Supplement, the Notes will be issued in
denominations of $1,000 and integral multiples
thereof.
Interest Rate Bases: Unless otherwise specified in the applicable Pricing
Supplement, the Notes will bear interest at (A)
fixed rates ("Fixed Rate Notes") or (B) floating
rates ("Floating Rate Notes") determined by
reference to one or more Interest Rate Bases or
formulas, as adjusted by the Spread and/or Spread
Multiplier, if any, applicable to such Floating
Rate Notes.
Redemption/Repayment: The Notes will be subject to redemption by the
Operating Partnership in accordance with the terms
of the Notes, which will be fixed at the time of
sale and set forth in the applicable Note and
Pricing Supplement. If no Initial Redemption Date
is specified on the face of a Note, such Note will
not be redeemable prior to its Stated Maturity Date.
The Notes will be subject to repayment at the
option of the Holders thereof in accordance with the
terms of the Notes, which will be fixed at the time
of sale and set forth in the applicable Note and
Pricing Supplement. If no Optional Repayment Date
is specified on the face of a Note, such Note will
not be repayable at the option of the Holder prior
to its Stated Maturity Date.
Calculation of Interest: Unless otherwise specified in the applicable Pricing
Supplement, interest on each Fixed Rate Note
(including payments for partial periods) will be
calculated and paid on the basis of a 360-day year
of twelve 30-day months.
The interest rate on each Floating Rate Note will be
calculated by reference to the specified Interest
Rate Basis or Bases plus or minus the applicable
Spread, if any, and/or multiplied by the applicable
Spread Multiplier, if any.
- 3-
<PAGE> 49
Unless otherwise specified in the applicable
Pricing Supplement, interest on each Floating
Rate Note will be calculated by multiplying its
principal amount by an accrued interest factor.
Such accrued interest factor is computed by
adding the interest factor calculated for each
day in the period for which accrued interest is
being calculated. Unless otherwise specified
in the applicable Pricing Supplement, the
interest factor for each such day is computed
by dividing the interest rate applicable to
such day by 360 if the CD Rate, Commercial
Paper Rate, Eleventh District Cost of Funds
Rate, Federal Funds Rate, LIBOR or Prime Rate
is an applicable Interest Rate Basis, or by
the actual number of days in the year if the
CMT Rate or Treasury Rate is an applicable
Interest Rate Basis. The interest factor for
Notes for which the interest rate is calculated
with reference to two or more Interest Rate
Bases will be calculated in each period in the
same manner as if only the applicable Interest
Rate Basis specified in the applicable Pricing
Supplement applied.
Interest: General. Each Note will bear interest in accordance
with its terms. Unless otherwise specified in
the applicable Pricing Supplement, interest on each
Note will accrue from and including the Original
Issue Date of such Note for the first interest
period or from the most recent Interest Payment Date
(as defined below) to which interest has been paid
or duly provided for all subsequent interest periods
to but excluding the applicable Interest Payment
Date or the Stated Maturity Date or date of earlier
redemption, repayment or acceleration of maturity or
if the maturity of the Note is extended, the new
date of maturity specified in a notice of such
exercise, as the case may be (the Stated Maturity
Date or such earlier or later date, as the case may
be, if referred to herein as the "Maturity Date"
with respect to the principal repayable on such
date).
If an Interest Payment Date or the Maturity Date
with respect to any Fixed Rate Note falls on a day
that is not a Business Day (as defined in the
Prospectus), the required payment to be made on such
day need not
- 4 -
<PAGE> 50
be made on such day, but may be made on the next
succeeding Business Day with the same force and
effect as if made on such day, and no interest shall
accrue on such payment for the period from and after
such day to the next succeeding Business Day. If an
Interest Payment Date other than the Maturity Date
with respect to any Floating Rate Note would
otherwise fall on a day that is not a Business Day,
such Interest Payment Date will be postponed to the
next succeeding Business Day, except that in the
case of a Note for which LIBOR is an applicable
Interest Rate Basis, if such Business Day falls in
the next succeeding calendar month, such Interest
Payment Date will be the immediately preceding
Business Day. If the Maturity Date with respect to
any Floating Rate Note falls on a day that is not a
Business Day, the required payment to be made on
such day need not be made on such day, but may be
made on the next succeeding Business Day with the
same force and effect as if made on such day, and no
interest shall accrue on such payment for the period
from and after the Maturity Date to the next
succeeding Business Day.
Regular Record Dates. Unless otherwise specified in
the applicable Pricing Supplement, the "Regular
Record Date" for a Note shall be the date 15
calendar days (whether or not a Business Day)
preceding the applicable Interest Payment Date.
Interest Payment Dates. Interest payments will be
made on each Interest Payment Date commencing with
the first Interest Payment Date following the
Original Issue Date; provided, however, the first
payment of interest on any Note originally issued
between a Regular Record Date and an Interest
Payment Date will occur on the Interest Payment Date
immediately following the next succeeding Regular
Record Date.
Unless otherwise specified in the applicable Pricing
Supplement, interest payments on Fixed Rate Notes
will be made semiannually in arrears on May 1 and
- 5 -
<PAGE> 51
November 1 of each year and on the Maturity Date,
while interest payments on Floating Rate Notes will
be made as specified in the applicable Pricing
Supplement.
Acceptance and
Rejection of Offers
from Solicitation
as Agents: If agreed upon by any Agent and the Operating
Partnership, then such Agent acting solely as
agent for the Operating Partnership and not as
principal will solicit purchases of the Notes. Each
Agent will communicate to the Operating Partnership,
orally or in writing, each reasonable offer to
purchase Notes solicited by such Agent on an agency
basis, other than those offers rejected by such
Agent. Each Agent has the right, in its discretion
reasonably exercised, to reject any proposed
purchase of Notes, as a whole or in part, and any
such rejection shall not be a breach of such Agent's
agreement contained in the Distribution Agreement.
The Operating Partnership has the sole right to
accept or reject any proposed purchase of Notes, in
whole or in part, and any such rejection shall not
constitute a breach of the Operating Partnership's
agreement contained in the Distribution Agreement.
Each Agent has agreed to make reasonable efforts to
assist the Operating Partnership in obtaining
performance by each purchaser whose offer to
purchase Notes has been solicited by such Agent and
accepted by the Operating Partnership.
Preparation of
Pricing Supplement: If any offer to purchase a Note is accepted by the
Operating Partnership, the Operating Partnership will
promptly prepare a Pricing Supplement reflecting
the terms of such Note. Information to be included
in the Pricing Supplement shall include:
1. the name of the Operating Partnership;
2. the title of the Notes;
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<PAGE> 52
3. the date of the Pricing Supplement and the
date of the Prospectus to which the Pricing
Supplement relates;
4. the name of the Offering Agent (as defined
below);
5. whether such Notes are being sold to the
Offering Agent as principal or to an investor
or other purchaser through the Offering Agent
acting as agent for the Operating Partnership;
6. with respect to Notes sold to the Offering
Agent as principal, whether such Notes
will be resold by the Offering Agent to
investors and other purchasers at (i) a fixed
public offering price of a specified percentage
of their principal amount or (ii) at varying
prices related to prevailing market prices at
the time of resale to be determined by the
Offering Agent;
7. with respect to Notes sold to an investor or
other purchaser through the Offering Agent
acting as agent for the Operating Partnership,
whether such Notes will be sold at (i) 100% of
their principal amount or (ii) a specified
percentage of their principal amount;
8. the Offering Agent's discount or commission;
9. Net proceeds to the Operating Partnership;
10. the Principal Amount, Specified Currency,
Original Issue Date, Stated Maturity
Date, Interest Payment Date(s), Authorized
Denomination, Initial Redemption Date, if any,
Initial Redemption Percentage, if any, Annual
Redemption Percentage Reduction, if any,
Optional Repayment Date(s), if any, Exchange
Rate Agent, if any, and, in the case of Fixed
Rate Notes, the Interest Rate, and, in the case
of Floating Rate Notes, the Interest Category,
the Interest Rate Basis or Bases, Day Count
Convention, Index Maturity (if applicable),
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<PAGE> 53
Initial Interest Rate, if any, Maximum Interest
Rate, if any, Minimum Interest Rate, if any,
Initial Interest Reset Date, Interest Reset
Dates, Spread and/or Spread Multiplier, if any,
and Calculation Agent, and, in the case of
Discount Notes, the Issue Price; and
11. any other additional provisions of the Notes
material to investors or other purchasers of
the Notes not otherwise specified in the
Prospectus.
The Operating Partnership shall send such Pricing
Supplement by telecopy or overnight express (for
delivery by the close of business on the applicable
trade date, but in no event later than 11:00 a.m.,
New York City time, on the Business Day following
the applicable trade date) to the Agent which made
or presented the offer to purchase the applicable
Note (in such capacity, the "Offering Agent") and
the Trustee at the following applicable address: if
to Merrill Lynch, Pierce, Fenner & Smith
Incorporated, to: Tritech Services, 40 Colonial
Drive, Piscataway, New Jersey 08854, Attention:
Nachman Kimerling/Final Private Placement Memorandum
Unit, (908) 885-2768, telecopier: (908)
885-2774/5/6, with a copy of such Pricing Supplement
to Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated, World Financial Center,
North Tower, 10th Floor, New York, New York,
10281-1310, Attention: MTN Product Management,
(212) 449-7476, telecopier: (212) 449-2234; if to
J.P. Morgan Securities Inc., Medium Term Note Desk -
3rd Floor, 60 Wall Street, New York, New York
10260, (212) 648-0591, telecopier: (212) 648-5907 and
if to the Trustee, to SunTrust Bank, Atlanta, 58
Edgewood Avenue, Suite 400, Atlanta, Georgia 30303,
telecopier: (404) 322-3966 Attention: Bryan Echols.
A copy of such Pricing Supplement shall also be sent
to Hogan & Hartson L.L.P., Columbia Square, 555
Thirteenth Street, N.W., Washington, D.C. 20004,
Attention: J. Warren Gorrell, Jr.
In each instance that a Pricing Supplement is
prepared, the Offering Agent will provide a copy of
such Pricing Supplement to each investor or
purchaser
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<PAGE> 54
of the relevant Notes or its agent. Pursuant to
Rule 434 ("Rule 434") of the Securities Act of 1933,
as amended, the Pricing Supplement may be delivered
separately from the Prospectus. Outdated Pricing
Supplements (other than those retained for files)
will be destroyed.
Settlement: The receipt of immediately available funds by the
Operating Partnership in payment for a Note and
the authentication and delivery of such Note shall,
with respect to such Note, constitute "settlement".
Offers accepted by the Operating Partnership will be
settled in three Business Days, or at such time as
the purchaser, the Offering Agent and the Operating
Partnership shall agree, pursuant to the timetable
for settlement set forth in Parts II and III hereof
under "Settlement Procedure Timetable" with respect
to Global Notes and Certificated Notes, respectively
(each such date fixed for settlement is hereinafter
referred to as a "Settlement Date"). If procedures
A and B of the applicable Settlement Procedures with
respect to a particular offer are not completed on
or before the time set forth under the applicable
"Settlement Procedures Timetable," such offer shall
not be settled until the Business Day following the
completion of settlement procedures A and B or such
later date as the purchaser and the Operating
Partnership shall agree.
The foregoing settlement procedures may be modified
with respect to any purchase of Notes by an Agent as
principal if so agreed by the Operating Partnership
and such Agent.
Procedure for Changing
Rates or Other
Variable Terms: When a decision has been reached to change the
interest rate or any other variable term on any
Notes being sold by the Operating Partnership, the
Operating Partnership will promptly advise the
Agents and the Trustee by telephone and the Agents
will forthwith suspend solicitation of offers to
purchase such Notes. The Agents will telephone the
Operating Partnership with recommendations as to
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<PAGE> 55
the changed interest rates or other variable terms.
At such time as the Operating Partnership notifies
the Agents and the Trustee of the new interest rates
or other variable terms, the Agents may resume
solicitation of offers to purchase such Notes.
Until such time, only "indications of interest" may
be recorded. Immediately after acceptance by the
Operating Partnership of an offer to purchase Notes
at a new interest rate or new variable term, the
Operating Partnership, the Offering Agent and the
Trustee shall follow the procedures set forth under
the applicable "Settlement Procedures."
Suspension of
Solicitation;
Amendment or
Supplement: The Operating Partnership may instruct the Agents
to suspend solicitation of offers to purchase
Notes at any time. Upon receipt of such
instructions, the Agents will forthwith suspend
solicitation of offers to purchase from the
Operating Partnership until such time as the
Operating Partnership has advised the Agents that
solicitation of offers to purchase may be resumed.
Any notice of an amendment or supplement to the
Registration Statement or the Prospectus required to
be given by the Operating Partnership to the Agents
pursuant to the Distribution Agreement shall be
given as so required and any amendment or supplement
to the Registration Statement or the Prospectus
required to be delivered or mailed to the Agents
pursuant to the Distribution Agreement shall be
delivered or mailed as so required in quantities
which such parties may reasonably request at the
following respective addresses: if to Merrill
Lynch, Pierce, Fenner & Smith Incorporated, World
Financial Center, North Tower, 10th Floor, New York,
New York 10281-1310, Attention: MTN Product
Management, (212) 449-7476, telecopier: (212)
449-2234; if to J.P. Morgan Securities Inc., Medium
Term Note Desk - 3rd Floor, 60 Wall Street, New
York, New York 10260, (212) 648-0591, telecopier:
(212) 648-5907 and if to the Trustee, to: SunTrust
Bank, Atlanta, 58 Edgewood Avenue, Suite 400,
Atlanta, Georgia 30303, Attention: Bryan Echols,
telecopier: (404)322-3966. One copy of such
amendment or supplement shall be sent to
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<PAGE> 56
Hogan & Hartson L.L.P., Columbia Square, 555
Thirteenth Street, N.W., Washington, D.C. 20004,
Attention: J. Warren Gorrell, Jr.
In the event that at the time the solicitation of
offers to purchase from the Operating Partnership is
suspended (other than to establish or change
interest rates or formulas, maturities, prices or
other similar variable terms with respect to the
Notes) there shall be any offers to purchase Notes
that have been accepted by the Operating Partnership
which have not been settled, the Operating
Partnership will promptly advise the Offering Agent
and the Trustee whether such offers may be settled
and whether copies of the Prospectus as theretofore
amended and/or supplemented as in effect at the time
of the suspension may be delivered in connection
with the settlement of such offers. The Operating
Partnership will have the sole
responsibility for such decision and for any
arrangements which may be made in the event that the
Operating Partnership determines that such offers
may not be settled or that copies of such Prospectus
may not be so delivered.
Delivery of Prospectus
and applicable
Pricing Supplement: A copy of the most recent Prospectus and the
applicable Pricing Supplement, which pursuant
to Rule 434 may be delivered separately from the
Prospectus, must accompany or precede the earlier of
(a) the written confirmation of a sale sent to an
investor or other purchaser or its agent and (b) the
delivery of Notes to an investor or other purchaser
or its agent.
Authenticity of
Signatures: The Agents will have no obligation or liability to
the Operating Partnership or the Trustee in
respect of the authenticity of the signature of any
officer, employee or agent of the Operating
Partnership or the Trustee on any Note.
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<PAGE> 57
Documents Incorporated
by Reference: The Operating Partnership shall supply the Agents
with an adequate supply of all documents
incorporated by reference in the Registration
Statement and the Prospectus.
PART II: PROCEDURES FOR NOTES ISSUED
IN BOOK-ENTRY FORM
In connection with the qualification of Notes issued in book-entry form
for eligibility in the book-entry system maintained by DTC, the Trustee will
perform the custodial, document control and administrative functions described
below, in accordance with its respective obligations under a Letter of
Representations from the Operating Partnership and The First National Bank of
Chicago, as Paying Agent of the Trustee to DTC, dated January 14, 1997, and a
Certificate Agreement, dated May 26, 1989, between The First National Bank of
Chicago, as Paying Agent of the Trustee and DTC, as amended (the
"Certificate Agreement"), and its obligations as a participant in DTC,
including DTC's Same-Day Funds Settlement System ("SDFS").
Issuance: All Fixed Rate Notes issued in book-entry form
having the same Original Issue Date, Specified
Currency, Interest Rate, Interest Payment Dates,
redemption and/or repayment terms, if any, and
Stated Maturity Date (collectively, the "Fixed Rate
Terms") will be represented initially by one or more
Global Notes; and all Floating Rate Notes issued in
book-entry form having the same Original Issue Date,
Specified Currency, Interest Category, formula for
the calculation of interest (including the Interest
Rate Basis or Bases, which may be the CD Rate, the
CMT Rate, the Commercial Paper Rate, the Eleventh
District Cost of Funds Rate, the Federal Funds Rate,
LIBOR, the Prime Rate or the Treasury Rate or any
other interest rate basis or formula, and Spread
and/or Spread Multiplier, if any), Day Count
Convention, Initial Interest Rate, Index Maturity
(if applicable), Minimum Interest Rate, if any,
Maximum Interest Rate, if any, redemption and/or
repayment terms, if any, Interest Payment Dates,
Initial Interest Reset Date, Interest Reset Dates
and Stated Maturity Date (collectively, the
"Floating Rate Terms") will be represented initially
by one or more Global Notes.
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<PAGE> 58
For other variable terms with respect to the Fixed
Rate Notes and Floating Rate Notes, see the
Prospectus and the applicable Pricing Supplement.
Owners of beneficial interests in Global Notes will
be entitled to physical delivery of Certificated
Notes equal in principal amount to their respective
beneficial interests only upon certain limited
circumstances described in the Prospectus.
Identification: The Operating Partnership has arranged with the
CUSIP Service Bureau of Standard & Poor's
Corporation (the "CUSIP Service Bureau") for the
reservation of one series of CUSIP numbers, which
series consists of approximately 900 CUSIP numbers
which have been reserved for and relate to Global
Notes and the Operating Partnership has delivered to
each of the Trustee and DTC such list of such CUSIP
numbers. The Operating Partnership will assign
CUSIP numbers to Global Notes as described below
under Settlement Procedure B. DTC will notify the
CUSIP Service Bureau periodically of the CUSIP
numbers that the Operating Partnership has assigned
to Global Notes. The Trustee will notify the
Operating Partnership at any time when fewer than
100 of the reserved CUSIP numbers remain unassigned
to Global Notes, and, if it deems necessary, the
Operating Partnership will reserve and obtain
additional CUSIP numbers for assignment to Global
Notes. Upon obtaining such additional CUSIP
numbers, the Operating Partnership will deliver a
list of such additional numbers to the Trustee and
DTC. Notes issued in book-entry form in excess of
$200,000,000 (or the equivalent thereof in one or
more foreign or composite currencies) in aggregate
principal amount and otherwise required to be
represented by the same Global Note will instead by
represented by two or more Global Notes which shall
all be assigned the same CUSIP number.
Registration: Unless otherwise specified by DTC, each Global Note
will be registered in the name of Cede & Co.,
as nominee for DTC, on the register maintained by
the Trustee under the Indenture. The beneficial
owner of
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<PAGE> 59
a Note issued in book-entry form (i.e., an owner of
a beneficial interest in a Global Note) (or one or
more indirect participants in DTC designated by such
owner) will designate one or more participants in
DTC (with respect to such Note issued in book-entry
form, the "Participants") to act as agent for such
beneficial owner in connection with the book-entry
system maintained by DTC, and DTC will record in
book-entry form, in accordance with instructions
provided by such Participants, a credit balance
with respect to such Note issued in book-entry form
in the account of such Participants. The ownership
interest of such beneficial owner in such Note
issued in book-entry form will be recorded through
the records of such Participants or through the
separate records of such Participants and one or
more indirect participants in DTC.
Transfers: Transfers of beneficial ownership interests in a
Global Note will be accomplished by book entries
made by DTC and, in turn, by Participants (and in
certain cases, one or more indirect participants in
DTC) acting on behalf of beneficial transferors and
transferees of such Global Note.
Exchanges: The Trustee may deliver to DTC and the CUSIP
Service Bureau at any time a written notice
specifying (a) the CUSIP numbers of two or more
Global Notes outstanding on such date that represent
Global Notes having the same Fixed Rate Terms or
Floating Rate Terms, as the case may be (other than
Original Issue Dates), and for which interest has
been paid to the same date; (b) a date, occurring at
least 30 days after such written notice is delivered
and at least 30 days before the next Interest
Payment Date for the related Notes issued in
book-entry form, on which such Global Notes shall be
exchanged for a single replacement Global Note; and
(c) a new CUSIP number, obtained from the Operating
Partnership, to be assigned to such replacement
Global Note. Upon receipt of such a notice, DTC
will send to its Participants (including the
Trustee) a written reorganization notice to the
effect that such exchange will occur on such date.
Prior to the specified exchange date, the Trustee
will deliver to
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<PAGE> 60
the CUSIP Service Bureau written notice setting
forth such exchange date and the new CUSIP number
and stating that, as of such exchange date, the
CUSIP numbers of the Global Notes to be exchanged
will no longer be valid. On the specified exchange
date, the Trustee will exchange such Global Notes
for a single Global Note bearing the new CUSIP
number and the CUSIP numbers of the exchanged Notes
will, in accordance with CUSIP Service Bureau
procedures, be canceled and immediately reassigned.
Notwithstanding the foregoing, if the Global Notes
to be exchanged exceed $200,000,000 (or the
equivalent thereof in one or more foreign or
composite currencies ) in aggregate principal
amount, one replacement Note will be authenticated
and issued to represent each $200,000,000 (or the
equivalent thereof in one or more foreign or
composite currencies) in aggregate principal amount
of the exchanged Global Notes and an additional
Global Note or Notes will be authenticated and
issued to represent any remaining principal amount
of such Global Notes (See "Denominations" below).
Denominations: Unless otherwise specified in the applicable Pricing
Supplement, Notes issued in book-entry form
will be issued in denominations of $1,000 and
integral multiples thereof. Each Global Note will
be denominated in an aggregate principal amount not
in excess of $200,000,000 (or the equivalent thereof
in one or more foreign or composite currencies). If
one or more Notes are issued in book-entry form
having an aggregate principal amount in excess of
$200,000,000 (or the equivalent thereof in one or
more foreign or composite currencies) and would, but
for the preceding sentence, be represented by a
single Global Note, then one Global Note will be
issued to represent each $200,000,000 (or the
equivalent thereof in one or more foreign or
composite currencies) in aggregate principal amount
of such Notes issued in book-entry form and an
additional Global Note will be issued to represent
any remaining aggregate principal amount of such
Notes issued in book-entry form. In such a case,
each of the Global Notes representing Notes issued
in book-entry form shall be assigned the same CUSIP
number.
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<PAGE> 61
Payments of Principal
and Interest: Payments of Interest Only. Promptly after each
Regular Record Date, the Trustee will deliver
to the Operating Partnership and DTC a written
notice specifying by CUSIP number the amount of
interest to be paid on each Global Note on the
following Interest Payment Date (other than an
Interest Payment Date coinciding with the Maturity
Date) and the total of such amounts. DTC will
confirm the amount payable on each Global Note on
such Interest Payment Date by reference to the daily
bond reports published by Standard & Poor's
Corporation. On such Interest Payment Date, the
Operating Partnership will pay to the Trustee in
immediately available funds an amount sufficient to
pay the interest then due and owing on the Global
Notes, and upon receipt of such funds from the
Operating Partnership, the Trustee in turn will pay
to DTC such total amount of interest due on such
Global Notes (other than on the Maturity Date) which
is payable in U.S. dollars, at the times and in the
manner set forth below under "Manner of Payment."
The Trustee shall make payment of that amount of
interest due and owing on any Global Notes that
Participants have elected to receive in foreign or
composite currencies directly to such Participants.
Notice of Interest Rates. Promptly after each
Interest Determination Date or Calculation Date, as
the case may be, for Floating Rate Notes issued in
book-entry form, the Trustee will notify each of
Moody's Investors Service, Inc. and Standard &
Poor's Corporation of the interest rates determined
as of such Interest Determination Date.
Payments at Maturity. On or about the first
Business Day of each month, the Trustee will deliver
to the Operating Partnership and DTC a written list
of principal, premium, if any, and interest to be
paid on each Global Note maturing or otherwise
becoming due in the following month. The Trustee,
the Operating Partnership and DTC will confirm the
amounts of such principal, premium, if any, and
interest payments with respect to each such Global
Note on or
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<PAGE> 62
about the fifth Business Day preceding the
Maturity Date of such Global Note. On the Maturity
Date, the Operating Partnership will pay to the
Trustee in immediately available funds an amount
sufficient to make the required payments, and upon
receipt of such funds the Trustee in turn will pay
to DTC the principal amount of Global Notes,
together with premium, if any, and interest due on
the Maturity Date, which are payable in U.S.
dollars, at the times and in the manner set forth
below under "Manner of Payment." The Trustee shall
make payment of the principal, premium, if any, and
interest to be paid on the Maturity Date of each
Global Note that Participants have elected to
receive in foreign or composite currencies directly
to such Participants. Promptly after (i) payment to
DTC of the principal, premium, if any, and interest
due on the Maturity Date of a Global Note payable in
U.S. dollars and (ii) payment of the principal,
premium, if any, and interest due on the Maturity
Date of a Global Note to those Participants who have
elected to receive such payments in foreign or
composite currencies, the Trustee will cancel such
Global Note and deliver it to the Operating
Partnership with an appropriate debit advice. On
the first Business Day of each month, the Trustee
will deliver to the Operating Partnership a written
statement indicating the total principal amount of
outstanding Global Notes as of the close of business
on the immediately preceding Business Day.
Manner of Payment. The total amount of any
principal, premium, if any, and interest due on
Global Notes on any Interest Payment Date or the
Maturity Date, as the case may be, which is payable
in U.S. dollars shall be paid by the Operating
Partnership to the Trustee in funds available for
use by the Trustee no later than 10:00 a.m., New
York City time, on such date. The Operating
Partnership will make such payment on such Global
Notes to an account specified by the Trustee. Upon
receipt of such funds, the Trustee will pay by
separate wire transfer (using Fedwire message entry
instructions in a form previously specified by DTC)
to an account at the Federal Reserve Bank of New
York previously
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<PAGE> 63
specified by DTC, in funds available for immediate
use by DTC, each payment in U.S. dollars of
principal, premium, if any, and interest due on
Global Notes on such date. Thereafter on such date,
DTC will pay, in accordance with its SDFS operating
procedures then in effect, such amounts in funds
available for immediate use to the respective
Participants in whose names the beneficial interests
in such Global Notes are recorded in the book-entry
system maintained by DTC. Neither the Operating
Partnership nor the Trustee shall have any
responsibility or liability for the payment in U.S.
dollars by DTC of the principal of, or premium, if
any, or interest on, the Global Notes. The Trustee
shall make all payments of principal, premium, if
any, and interest on each Global Note that
Participants have elected to receive in foreign or
composite currencies directly to such Participants.
Withholding Taxes. The amount of any taxes required
under applicable law to be withheld from any
interest payment on a Global Note will be determined
and withheld by the Participant, indirect
participant in DTC or other Person responsible for
forwarding payments and materials directly to the
beneficial owner of such Global Note.
Settlement
Procedures: Settlement Procedures with regard to each Note in
book-entry form sold by an Agent, as agent of
the Operating Partnership, or purchased by an Agent,
as principal, will be as follows:
A. The Offering Agent will advise the Operating
Partnership by telephone, confirmed by
facsimile, of the following settlement
information:
1. Principal Amount, Authorized Denomination
and Specified Currency.
2. Exchange Rate Agent, if any.
3. (a) Fixed Rate Notes:
(i) Interest Rate.
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<PAGE> 64
(ii) Interest Payment Dates.
(b) Floating Rate Notes:
(i) Interest Category.
(ii) Interest Rate Basis or Bases.
(iii) Initial Interest Rate.
(iv) Spread and/or Spread Multiplier, if
any.
(v) Initial Interest Reset Date or
Interest Reset Dates.
(vi) Interest Payment Dates.
(vii) Index Maturity, if any.
(viii) Maximum and/or Minimum Interest
Rates, if any.
(ix) Day Count Convention.
(x) Calculation Agent.
(c) Discount Notes:
(i) Issue Price
4. Price to public of such Note or whether
such Note is being offered at varying
prices relating to prevailing market
prices at time of resale as determined by
the Offering Agent.
5. Trade Date.
6. Settlement Date (Original Issue Date).
7. Stated Maturity Date.
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<PAGE> 65
8. Whether the Operating Partnership has the
option to extend the Stated Maturity Date
of the Note, and, if so the final Maturity
Date.
9. Redemption provisions, if any.
10. Repayment provisions, if any.
11. Net proceeds to the Operating Partnership.
12. The Offering Agent's discount or
commission.
13. Whether such Note is being sold to the
Offering Agent as principal or to an
investor or other purchaser through the
Offering Agent acting as agent for the
Operating Partnership.
14. Such other information specified with
respect to such Note (whether by Addendum
or otherwise).
B. The Operating Partnership will assign a CUSIP
number to the Global Note representing such
Note and then advise the Trustee by facsimile
transmission or other electronic transmission of
the above settlement information received from
the Offering Agent, such CUSIP number and the
name of the Offering Agent. The Operating
Partnership will also advise the Offering Agent
of the CUSIP number assigned to the Global Note.
C. The Trustee will communicate to DTC and the
Offering Agent through DTC's Participant
Terminal System a pending deposit message
specifying the following settlement information:
1. The information set forth in the Settlement
Procedure A.
2. Identification numbers of the participant
accounts maintained by DTC on behalf of the
Trustee and the Offering Agent.
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<PAGE> 66
3. Identification of the Global Note as a Fixed
Rate Global Note or Floating Rate Global
Note.
4. Initial Interest Payment Date for such Note,
number of days by which such date succeeds the
related record date for DTC purposes (or, in
the case of Floating Rate Notes which reset
daily or weekly, the date five calendar days
preceding the Interest Payment Date) and, if
then calculable, the amount of interest
payable on such Interest Payment Date (which
amount shall have been confirmed by the
Trustee).
5. CUSIP number of the Global Note representing
such Note.
6. Whether such Global Note represents any
other Notes issued or to be issued in
book-entry form.
DTC will arrange for each pending deposit message
described above to be transmitted to Standard &
Poor's Corporation, which will use the information
in the message to include certain terms of the
related Global Note in the appropriate daily bond
report published by Standard & Poor's Corporation.
D. The Trustee will complete and authenticate the
Global Note representing such Note.
E. DTC will credit such Note to the participant
account of the Trustee maintained by DTC.
F. The Trustee will enter an SDFS deliver order
through DTC's Participant Terminal
System instructing DTC (i) to debit such Note
to the Trustee's participant account and
credit such Note to the participant account of
the Offering Agent maintained by DTC and (ii)
to debit the settlement account of the
Offering Agent and credit the settlement
account of the Trustee maintained by DTC, in
an amount equal to the price of such Note
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<PAGE> 67
less such Offering Agent's discount or
underwriting commission, as applicable. Any
entry of such a deliver order shall be deemed
to constitute a representation and warranty by
the Trustee to DTC that (i) the Global Note
representing such Note has been issued and
authenticated and (ii) the Trustee is holding
such Global Note pursuant to the Certificate
Agreement.
G. In the case of Notes in book-entry form sold
through the Offering Agent, as agent,
the Offering Agent will enter an SDFS deliver
order through DTC's Participant Terminal
System instructing DTC (i) to debit such Note
to the Offering Agent's participant account
and credit such Note to the participant
account of the Participants maintained by DTC
and (ii) to debit the settlement accounts of
such Participants and credit the settlement
account of the Offering Agent maintained by
DTC in an amount equal to the initial public
offering price of such Note.
H. Transfers of funds in accordance with SDFS
deliver orders described in Settlement
Procedures F and G will be settled in
accordance with SDFS operating procedures in
effect on the Settlement Date.
I. Upon receipt, the Trustee will pay the
Operating Partnership, by wire transfer
of immediately available funds to an account
specified by the Operating Partnership to the
Trustee from time to time, the amount
transferred to the Trustee in accordance with
Settlement Procedure F.
J. The Trustee will send a copy of the Global
Note by first class mail to the Operating
Partnership and, at the request of the
Operating Partnership, a statement setting
forth the principal amount of Notes
Outstanding as of the related Settlement Date
after giving effect to such transaction and
all other offers to purchase Notes of which
the Operating Partnership has advised the
Trustee but which have not yet been settled.
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<PAGE> 68
K. If such Note was sold through the Offering
Agent, as agent, the Offering Agent
will confirm the purchase of such Note to the
investor or other purchaser either by
transmitting to the Participant with respect
to such Note a confirmation order through
DTC's Participant Terminal System or by
mailing a written confirmation to such
investor or other purchaser.
Settlement Procedures
Timetable: For offers to purchase Notes accepted by the
Operating Partnership, Settlement Procedures A
through K set forth above shall be completed as soon
as possible following the trade but not later than
the respective times (New York City time) set forth
below:
<TABLE>
<CAPTION>
SETTLEMENT
PROCEDURE TIME
--------- ----
<S> <C>
A 11:00 a.m. on the trade date or within one
hour following the trade
B 12:00 noon on the trade date or within one
hour following the trade
C No later than the close of business on the
trade date
D 9:00 a.m. on Settlement Date
E 10:00 a.m. on Settlement Date
F-G No later than 2:00 p.m. on
Settlement Date
H 4:00 p.m. on Settlement Date
I-K 5:00 p.m. on Settlement Date
</TABLE>
Settlement Procedure H is subject to extension in
accordance with any extension of Fedwire closing
deadlines and in the other events specified in the
SDFS operating procedures in effect on the
Settlement Date.
If settlement of a Note issued in book-entry
form is rescheduled or canceled, the Trustee will
deliver to DTC, through DTC's Participant Terminal
System, a cancellation message to such effect by no
later than 2:00 p.m., New York City time, on the
Business Day immediately preceding the scheduled
Settlement Date.
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<PAGE> 69
Failure to Settle: If the Trustee fails to enter an SDFS deliver order
with respect to a Note issued in book-entry
form pursuant to Settlement Procedure F, the
Trustee may deliver to DTC, through DTC's
Participant Terminal System, as soon as practicable
a withdrawal message instructing DTC to debit such
Note to the participant account of the Trustee
maintained at DTC. DTC will process the withdrawal
message, provided that such participant account
contains a principal amount of the Global Note
representing such Note that is at least equal to
the principal amount to be debited. If withdrawal
messages are processed with respect to all the
Notes represented by a Global Note, the Trustee
will mark such Global Note "canceled," make
appropriate entries in its records and send
certification of destruction of such canceled
Global Note to the Operating Partnership. The
CUSIP number assigned to such Global Note shall, in
accordance with CUSIP Service Bureau procedures, be
canceled and not immediately reassigned. If
withdrawal messages are processed with respect to a
portion of the Notes represented by a Global Note,
the Trustee will exchange such Global Note for two
Global Notes, one of which shall represent the
Global Notes for which withdrawal messages are
processed and shall be canceled immediately after
issuance and the other of which shall represent the
other Notes previously represented by the
surrendered Global Note and shall bear the CUSIP
number of the surrendered Global Note.
In the case of any Note in book-entry form sold
through the Offering Agent, as agent, if the
purchase price for any such Note is not timely paid
to the Participants with respect thereto by the
beneficial investor or other purchaser thereof (or
a person, including an indirect participant in DTC,
acting on behalf of such investor or other
purchaser), such Participants and, in turn, the
related Offering Agent may enter SDFS deliver
orders through DTC's Participant Terminal System
reversing the orders entered pursuant to Settlement
Procedures F and G, respectively. Thereafter, the
Trustee will deliver the
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<PAGE> 70
withdrawal message and take the related actions
described in the preceding paragraph. If such
failure shall have occurred for any reason other
than default by the Offering Agent to perform its
obligations hereunder or under the Distribution
Agreement, the Operating Partnership will reimburse
such Offering Agent on an equitable basis for its
loss of the use of funds during the period when the
funds were credited to the account of the Operating
Partnership.
Notwithstanding the foregoing, upon any failure
to settle with respect to a Note in book-entry
form, DTC may take any actions in accordance with
its SDFS operating procedures then in effect. In
the event of a failure to settle with respect to a
Note that was to have been represented by a Global
Note also representing other Notes, the Trustee
will provide, in accordance with Settlement
Procedure D, for the authentication and issuance of
a Global Note representing such remaining Notes and
will make appropriate entries in its records.
PART III: PROCEDURES FOR CERTIFICATED NOTES
Denominations: Unless otherwise specified in the applicable
Pricing Supplement, the Certificated Notes will be
issued in denominations of $1,000 and integral
multiples thereof.
Payments of Principal,
Premium, if any,
and Interest: Upon presentment and delivery of the Certificated
Note, the Trustee upon receipt of immediately
available funds from the Operating Partnership will
pay the principal of, and premium, if any, and
interest on, each Certificated Note on the Maturity
Date in immediately available funds. All interest
payments on a Certificated Note, other than
interest due on the Maturity Date, will be made by
check mailed to the address of the person entitled
thereto as such address
- 25 -
<PAGE> 71
shall appear in the Security Register; provided,
however, that Holders of $10,000,000 (or, if
the applicable Specified Currency is other than
United States dollars, the equivalent thereof in
such Specified Currency) or more in aggregate
principal amount of Certificated Notes (whether
having identical or different terms and provisions)
shall be entitled to receive such interest payments
by wire transfer of immediately available funds if
appropriate wire transfer instructions have been
received in writing by the Trustee not less than 15
calendar days prior to the applicable Interest
Payment Date.
The Trustee will provide monthly to the Operating
Partnership a list of the principal, premium, if
any, and interest to be paid on Certificated Notes
maturing in the next succeeding month. The Trustee
will be responsible for withholding taxes on
interest paid as required by applicable law.
Certificated Notes presented to the Trustee on
the Maturity Date for payment will be canceled by
the Trustee. All canceled Certificated Notes held
by the Trustee shall be destroyed, and the Trustee
shall furnish to the Operating Partnership a
certificate with respect to such destruction.
Settlement
Procedures: Settlement Procedures with regard to each
Certificated Note purchased by an Agent, as
principal, or through an Agent, as agent, shall be
as follows:
A. The Offering Agent will advise the Operating
Partnership by telephone of the following
Settlementinformation with regard to each
Certificated Note:
1. Exact name in which the Certificated
Note(s) is to be registered (the
"Registered Owner").
2. Exact address or addresses of the
Registered Owner for delivery, notices and
payments of principal, premium, if any, and
interest.
- 26 -
<PAGE> 72
3. Taxpayer identification number of the
Registered Owner.
4. Principal Amount, Authorized
Denomination and Specified Currency.
5. Exchange Rate Agent, if any.
6. (a) Fixed Rate Notes:
(i) Interest Rate.
(ii) Interest Payment Dates.
(iii) Whether such Note is being issued with
Original Issue Discount and, if so,
the terms thereof.
(b) Floating Rate Notes:
(i) Interest Category.
(ii) Interest Rate Basis or Bases.
(iii) Initial Interest Rate.
(iv) Spread and/or Spread
Multiplier, if any.
(v) Initial Interest Reset Date and
Interest Reset Dates.
(vi) Interest Payment Dates.
(vii) Index Maturity, if any.
(viii) Maximum and/or Minimum
Interest Rates, if any.
(ix) Day Count Convention.
(x) Calculation Agent.
- 27 -
<PAGE> 73
7. Price to public of such Note or whether
such Note is being offered at varying
prices relating to prevailing market
prices at time of resale as determined by
the Offering Agent.
8. Trade Date.
9. Settlement Date (Original Issue Date).
10. Stated Maturity Date.
11. Whether the Operating Partnership has
the option to extend the Stated Maturity
Date of the Note, and, if so the final
Maturity Date.
12. Redemption provisions, if any.
13. Repayment provisions, if any.
14. Net proceeds to the Operating Partnership.
15. The Offering Agent's discount or
commission.
16. Whether such Note is being sold to the
Offering Agent as principal or to an
investor or other purchaser through the
Offering Agent acting as agent for the
Operating Partnership.
17. Such other information specified with
respect to such Note (whether by Addendum
or otherwise).
B. After receiving such settlement information
from the Offering Agent, the Operating
Partnership will advise the Trustee of the above
settlement information by facsimile transmission
confirmed by telephone. The Operating
Partnership will cause the Trustee to issue,
authenticate and deliver the Certificated Note.
C. The Trustee will complete the Certificated Note
in the form approved by the Operating
Partnership and the Offering Agent, and will
make three copies
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<PAGE> 74
thereof (herein called "Stub 1", "Stub 2" and
"Stub 3"):
1. Certificated Note with the Offering
Agent's confirmation, if traded on a
principal basis, or the Offering Agent's
customer confirmation, if traded on an
agency basis.
2. Stub 1 for Trustee.
3. Stub 2 for Offering Agent.
4. Stub 3 for the Operating Partnership.
D. With respect to each trade, the Trustee will
deliver the Certificated Note and Stub 2
thereof to the Offering Agent at the following
applicable address: if to Merrill Lynch, Pierce,
Fenner & Smith Incorporated, Merrill Lynch Money
Markets Clearance, 55 Water Street, Concourse
Level, N.S.C.C. Window, New York, New York
10041, Attention: Al Mitchell, (212) 558-2405,
telecopier: (212) 558-2457; and if to J.P.
Morgan Securities Inc., NSCC-NY Window, 55 Water
Street - Concourse Level, New York, New York
10041 Attn: Bill Davis. The Trustee will keep
Stub 1. The Offering Agent will acknowledge
receipt of the Certificated Note through a
broker's receipt and will keep Stub 2. Delivery
of the Certificated Note will be made only
against such acknowledgment of receipt. Upon
determination that the Certificated Note has
been authorized, delivered and completed as
aforementioned, the Offering Agent will wire the
net proceeds of the Certificated Note after
deduction of its applicable commission to the
Operating Partnership pursuant to standard wire
instructions given by the Operating Partnership.
E. In the case of a Certificated Note sold through
the Offering Agent, as agent, the Offering
Agent will deliver such Certificated Note (with
the confirmation) to the purchaser against
payment in immediately available funds.
- 29 -
<PAGE> 75
F. The Trustee will send Stub 3 to the Operating
Partnership.
Settlement
Procedures
Timetable: For offers to purchase Certificated Notes accepted
by the Operating Partnership, Settlement
Procedures A through F set forth above shall be
completed as soon as possible following the trade
but not later than the respective times (New York
City time) set forth below:
<TABLE>
<CAPTION>
SETTLEMENT
PROCEDURE TIME
--------- ----
<S> <C>
A 11:00 a.m. on the trade date or within one
hour following the trade
B 12:00 noon on the trade date or within one
hour following the trade
C-D 2:15 p.m. on Settlement Date
E 3:00 p.m. on Settlement Date
F 5:00 p.m. on Settlement Date
</TABLE>
Failure to Settle: In the case of Certificated Notes sold through the
Offering Agent, as agent, if an investor or
other purchaser of a Certificated Note from the
Operating Partnership shall either fail to accept
delivery of or fail to make payment for such
Certificated Note on the date fixed for settlement,
the Offering Agent will forthwith notify the Trustee
and the Operating Partnership by telephone,
confirmed in writing, and return such Certificated
Note to the Trustee.
The Trustee, upon receipt of such Certificated Note
from the Offering Agent, will immediately advise the
Operating Partnership and the Operating Partnership
will promptly arrange to credit the account of the
Offering Agent in an amount of immediately available
funds equal to the amount previously paid to the
Operating Partnership by such Offering Agent in
settlement for such Certificated Note. Such credits
will be made on the Settlement Date if possible, and
in any event not later than the Business Day
following the Settlement Date; provided that the
Operating Partnership has received notice on the
same day. If
- 30 -
<PAGE> 76
such failure shall have occurred for any reason
other than default by the Offering Agent to perform
its obligations hereunder or under the Distribution
Agreement, the Operating Partnership will reimburse
such Offering Agent on an equitable basis for its
loss of the use of funds during the period when the
funds were credited to the account of the Operating
Partnership. Immediately upon receipt of the
Certificated Note in respect of which the failure
occurred, the Trustee will cancel and destroy such
Certificated Note, make appropriate entries in its
records to reflect the fact that such Certificated
Note was never issued, and accordingly notify in
writing the Operating Partnership.
- 31-
<PAGE> 1
EXHIBIT 4(a)
[FACE OF NOTE]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (THE "DEPOSITARY") (55 WATER STREET, NEW YORK, NEW YORK) TO THE
ISSUER HEREOF OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME
AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY AND ANY PAYMENT
IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.1
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.2
REGISTERED REGISTERED
No. FXR-___ PRINCIPAL AMOUNT:
CUSIP No.:
POST APARTMENT HOMES, L.P.
MEDIUM-TERM NOTE
(Fixed Rate)
ORIGINAL ISSUE DATE: INTEREST RATE: % STATED MATURITY DATE:
INTEREST PAYMENT DATE(S) DEFAULT RATE: %
[ ] ______ and _______
[ ] Other:
INITIAL REDEMPTION INITIAL REDEMPTION ANNUAL REDEMPTION
DATE: PERCENTAGE: % PERCENTAGE
REDUCTION: %
OPTIONAL REPAYMENT [ ]CHECK IF AN ORIGINAL
DATE(S): ISSUE DISCOUNT NOTE
Issue Price:
- -------------------
1 This paragraph applies to global Notes only.
2 This paragraph applies to global Notes only.
<PAGE> 2
SPECIFIED CURRENCY: AUTHORIZED DENOMINATION: EXCHANGE RATE
[ ] United States Dollars [ ] $1,000 and integral AGENT:
[ ] Other: multiples thereof
[ ] Other:
ADDENDUM ATTACHED OTHER/ADDITIONAL PROVISIONS:
[ ] Yes
[ ] No
A-2
<PAGE> 3
POST APARTMENT HOMES, L.P., a Georgia limited partnership (the
"Issuer"), which term includes any successor under the Indenture hereinafter
referred to), for value received, hereby promises to pay to __________ or its
registered assigns, the principal amount of $__________, on the Stated Maturity
Date specified above (or any Redemption Date or Repayment Date, each as defined
on the reverse hereof) (each such Stated Maturity Date, Redemption Date or
Repayment Date being hereinafter referred to as the "Maturity Date" with
respect to the principal repayable on such date) and to pay interest thereon,
at the Interest Rate per annum specified above, until the principal hereof is
paid or duly made available for payment, and (to the extent that the payment of
such interest shall be legally enforceable) at the Default Rate per annum
specified above on any overdue principal, premium and/or interest. The Issuer
will pay interest in arrears on each Interest Payment Date, if any, specified
above (each, an "Interest Payment Date"), commencing with the first Interest
Payment Date next succeeding the Original Issue Date specified above, and on
the Maturity Date; provided, however, that if the Original Issue Date occurs
between a Record Date (as defined below) and the related Interest Payment Date,
interest payments will commence on the Interest Payment Date immediately
following the next succeeding Record Date to the holder of this Note on such
next succeeding Record Date. Interest on this Note will be computed on the
basis of a 360-day year of twelve 30-day months.
Notwithstanding the foregoing, if an Addendum is attached hereto or
"Other/Additional Provisions" apply to this Note as specified above, this Note
shall be subject to the terms set forth in such Addendum or such
"Other/Additional Provisions."
Interest on this Note will accrue from, and including, the immediately
preceding Interest Payment Date to which interest has been paid or duly provided
for (or from, and including, the Original Issue Date if no interest has been
paid or duly provided for) to, but excluding, the applicable Interest Payment
Date or the Maturity Date, as the case may be (each, an "Interest Period"). The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, subject to certain exceptions described herein, be paid to
the person in whose name this Note (or one or more predecessor Notes) is
registered at the close of business on the fifteenth calendar day (whether or
not a Business Day, as defined below) immediately preceding such Interest
Payment Date (the "Record Date"); provided, however, that interest payable on
the Maturity Date will be payable to the person to whom the principal hereof and
premium, if any, hereon shall be payable. Any such interest not so punctually
paid or duly provided for ("Defaulted Interest") will forthwith cease to be
payable to the holder on any Record Date, and shall be paid to the person in
whose name this Note is registered at the close of business on a special record
date (the "Special Record Date") for the payment of such Defaulted Interest to
be fixed by the Trustee hereinafter referred to, notice whereof shall be given
to the holder of this Note by the Trustee not less than 10 calendar days prior
to such Special Record Date or may be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which this Note may be listed, and upon such notice as may be required by such
exchange, all as more fully provided for in the Indenture.
Payment of principal, premium, if any, and interest in respect of this
Note due on the Maturity Date will be made in immediately available funds upon
presentation and surrender of this
A-3
<PAGE> 4
Note (and, with respect to any applicable repayment of this Note, a duly
completed election form as contemplated on the reverse hereof) at the corporate
trust office of the Trustee maintained for that purpose in the Borough of
Manhattan, The City of New York, currently located c/o First National Bank of
Chicago, 14 Wall Street, Suite 4607, New York, New York 10005, or at such other
paying agency in the Borough of Manhattan, The City of New York, as the Issuer
may determine; provided, however, that if such payment is to be made in a
Specified Currency other than United States dollars as set forth below, such
payment will be made by wire transfer of immediately available funds to an
account with a bank designated by the holder hereof at least 15 calendar days
prior to the Maturity Date, provided that such bank has appropriate facilities
therefor and that this Note (and, if applicable, a duly completed repayment
election form) is presented and surrendered at the aforementioned office of the
Trustee in time for the Trustee to make such payment in such funds in accordance
with its normal procedures. Payment of interest due on any Interest Payment Date
other than the Maturity Date will be made by check mailed to the address of the
person entitled thereto as such address shall appear in the Security Register
maintained at the aforementioned office of the Trustee; provided, however, that
a holder of U.S. $10,000,000 (or, if the Specified Currency specified above is
other than United States dollars, the equivalent thereof in the Specified
Currency) or more in aggregate principal amount of Notes (whether having
identical or different terms and provisions) will be entitled to receive
interest payments on such Interest Payment Date by wire transfer of immediately
available funds if appropriate wire transfer instructions have been received in
writing by the Trustee not less than 15 calendar days prior to such Interest
Payment Date. Any such wire transfer instructions received by the Trustee shall
remain in effect until revoked by such holder.
If any Interest Payment Date or the Maturity Date falls on a day that
is not a Business Day, the required payment of principal, premium, if any,
and/or interest shall be made on the next succeeding Business Day with the same
force and effect as if made on the date such payment was due, and no interest
shall accrue with respect to such payment for the period from and after such
Interest Payment Date or the Maturity Date, as the case may be, to the date of
such payment on the next succeeding Business Day.
As used herein, "Business Day" means any day, other than a Saturday or
Sunday, that is neither a legal holiday nor a day on which banking institutions
are authorized or required by law, regulation or executive order to close in The
City of New York; provided, however, that if the Specified Currency is other
than United States dollars and any payment is to be made in the Specified
Currency in accordance with the provisions hereof, such day is also not a day on
which banking institutions are authorized or required by law, regulation or
executive order to close in the Principal Financial Center (as defined below) of
the country issuing the Specified Currency (or, in the case of European Currency
Units ("ECU"), is not a day that appears as an ECU non-settlement day on the
display designated as "ISDE" on the Reuter Monitor Money Rates Service (or a day
so designated by the ECU Banking Association) or, if ECU non-settlement days do
not appear on that page (and are not so designated), is not a day on which
payments in ECU cannot be settled in the international interbank market).
"Principal Financial Center" means the capital city of the country issuing the
Specified Currency, except that with respect to United States dollars,
Australian dollars, Deutsche marks, Dutch guilders, Italian lire, Swiss francs
and ECU's, the Principal Financial Center
A-4
<PAGE> 5
shall be The City of New York, Sydney, Frankfurt, Amsterdam, Milan, Zurich and
Luxembourg, respectively.
The Issuer is obligated to make payment of principal, premium, if any,
and interest in respect of this Note in the Specified Currency (or, if the
Specified Currency is not at the time of such payment legal tender for the
payment of public and private debts, in such other coin or currency of the
country which issued the Specified Currency as at the time of such payment is
legal tender for the payment of such debts). If the Specified Currency is other
than United States dollars, any such amounts so payable by the Issuer will be
converted by the Exchange Rate Agent specified above into United States dollars
for payment to the holder of this Note; provided, however, that the holder of
this Note may elect to receive such amounts in such Specified Currency pursuant
to the provisions set forth below.
If the Specified Currency is other than United States dollars and the
holder of this Note shall not have duly made an election to receive all or a
specified portion of any payment of principal, premium, if any, and/or interest
in respect of this Note in the Specified Currency, any United States dollar
amount to be received by the holder of this Note will be based on the highest
bid quotation in The City of New York received by the Exchange Rate Agent at
approximately 11:00 A.M., New York City time, on the second Business Day
preceding the applicable payment date from three recognized foreign exchange
dealers (one of whom may be the Exchange Rate Agent) selected by the Exchange
Rate Agent and approved by the Issuer for the purchase by the quoting dealer of
the Specified Currency for United States dollars for settlement on such payment
date in the aggregate amount of the Specified Currency payable to all holders of
Notes scheduled to receive United States dollar payments and at which the
applicable dealer commits to execute a contract. All currency exchange costs
will be borne by the holder of this Note by deductions from such payments. If
three such bid quotations are not available, payments on this Note will be made
in the Specified Currency.
If the Specified Currency is other than United States dollars, the
holder of this Note may elect to receive all or a specified portion of any
payment of principal, premium, if any, and/or interest in respect of this Note
in the Specified Currency by submitting a written request for such payment to
the Trustee at its corporate trust office in The City of New York on or prior to
the applicable Record Date or at least 15 calendar days prior to the Maturity
Date, as the case may be. Such written request may be mailed or hand delivered
or sent by cable, telex, or other form of facsimile transmission. The holder of
this Note may elect to receive all or a specified portion of all future payments
in the Specified Currency in respect of such principal, premium, if any, and/or
interest and need not file a separate election of each payment. Such election
will remain in effect until revoked by written notice to the Trustee, but
written notice of any such revocation must be received by the Trustee on or
prior to the applicable Record Date or at least 15 calendar days prior to the
Maturity Date, as the case may be.
If the Specified Currency is other than United States dollars or a
composite currency and the holder of this Note shall have duly made an election
to receive all or a specified portion of any payment of principal, premium, if
any, and/or interest in respect of this Note in the Specified
A-5
<PAGE> 6
Currency and if the Specified Currency is not available due to the imposition of
exchange controls or other circumstances beyond the control of the Issuer, the
Issuer will be entitled to satisfy its obligations to the holder of this Note by
making such payment in United States dollars on the basis of the Market Exchange
Rate (as defined below) on the second Business Day prior to such payment date
or, if such Market Exchange Rate is not then available, on the basis of the most
recently available Market Exchange Rate or as otherwise specified on the face
hereof. The "Market Exchange Rate" for the Specified Currency means the noon
dollar buying rate in The City of New York for cable transfers for the Specified
Currency as certified for customs purposes by (or if not so certified, as
otherwise determined by) the Federal Reserve Bank of New York. Any payment made
under such circumstances in United States dollars will not constitute an Event
of Default (as defined in the Indenture).
If the Specified Currency is a composite currency and the holder of
this Note shall have duly made an election to receive all or a specified portion
of any payment of principal, premium, if any, and/or interest in respect of this
Note in the Specified Currency and if such composite currency is unavailable due
to the imposition of exchange controls or other circumstances beyond the control
of the Issuer, then the Issuer will be entitled to satisfy its obligations to
the holder of this Note by making such payment in United States dollars. The
amount of each payment in United States dollars shall be computed by the
Exchange Rate Agent on the basis of the equivalent of the composite currency in
United States dollars. The component currencies of the composite currency for
this purpose (collectively, the "Component Currencies" and each, a "Component
Currency") shall be the currency amounts that were components of the composite
currency as of the last day on which the composite currency was used. The
equivalent of the composite currency in United States dollars shall be
calculated by aggregating the United States dollar equivalents of the Component
Currencies. The United States dollar equivalent of each of the Component
Currencies shall be determined by the Exchange Rate Agent on the basis of the
Market Exchange Rate on the second Business Day prior to the required payment
or, if such Market Exchange Rate is not then available, on the basis of the most
recently available Market Exchange Rate for each such Component Currency, or as
otherwise specified on the face hereof.
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of the currency as a Component
Currency shall be divided or multiplied in the same proportion. If two or more
Component Currencies are consolidated into a single currency, the amounts of
those currencies as Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the amounts of the consolidated Component
Currencies expressed in such single currency. If any Component Currency is
divided into two or more currencies, the amount of the original Component
Currency shall be replaced by the amounts of such two or more currencies, the
sum of which shall be equal to the amount of the original Component Currency.
All determinations referred to above made by the Exchange Rate Agent
shall be at its sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on the holder of this Note.
A-6
<PAGE> 7
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof and, if so specified above, in the Addendum hereto,
which further provisions shall have the same force and effect as if set forth on
the face hereof.
The Issuer will indemnify the holder of this Note against any loss
incurred by the holder hereof as a result of any judgment or order being given
or made for any amount due under such Note and such judgment or order requiring
payment in a foreign currency or composite currency (the "Judgment Currency")
other than such foreign currency or composite currency, and as a result of any
variation between (i) the rate of exchange at which the foreign currency or
composite currency amount is converted into the Judgment Currency for the
purpose of such judgment or order, and (ii) the rate of exchange at which the
holder of this Note, on the date of payment of such judgment or order, is able
to purchase the foreign currency or composite currency with the amount of
Judgment Currency actually received by the holder hereof, as the case may be.
Unless the Certificate of Authentication hereon has been executed by
the Trustee by manual signature, this Note shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, Post Apartment Homes, L.P. has caused this Note to
be duly executed.
POST APARTMENT HOMES, L.P.,
as Issuer
By: POST PROPERTIES, INC.,
as General Partner
By:
-------------------------------------------
Name: John A. Williams
Title: Chairman and Chief Executive Officer
Attest:
- -----------------------------------
Sherry W. Cohen
Senior Vice President and Secretary
[SEAL]
A-7
<PAGE> 8
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
Dated: SUNTRUST BANK, ATLANTA,
-------------------- as Trustee
By:
-------------------------------------
Authorized Signatory
A-8
<PAGE> 9
[REVERSE OF NOTE]
POST APARTMENT HOMES, L.P.
MEDIUM-TERM NOTE
(Fixed Rate)
This Note is one of a duly authorized series of Securities (the
"Securities") of the Issuer issued and to be issued under an Indenture, dated as
of September 25, 1996, as amended, modified or supplemented from time to time,
(the "Indenture"), between the Issuer and SunTrust Bank, Atlanta, as Trustee
(the "Trustee", which term includes any successor trustee under the Indenture),
to which Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Issuer, the Trustee and the holders of the
Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Note is one of the series of Securities
designated as "Medium- Term Notes Due Nine Months or More From Date of Issue"
(the "Notes"), which series of Securities is limited to $175,000,000 aggregate
initial offering price (or the equivalent thereof, determined as of the
respective dates of issuance, in any other currency or currencies), subject to
the provisions of the Indenture. All terms used but not defined in this Note
specified on the face hereof or in an Addendum hereto shall have the meanings
assigned to such terms in the Indenture.
This Note is issuable only in registered form without coupons in
minimum denominations of U.S. $1,000 and integral multiples thereof or the
minimum Authorized Denomination specified on the face hereof.
This Note will not be subject to any sinking fund and, unless otherwise
provided on the face hereof in accordance with the provisions of the following
two paragraphs, will not be redeemable or repayable prior to the Stated Maturity
Date.
This Note will be subject to redemption at the option of the Issuer on
any date on or after the Initial Redemption Date, if any, specified on the face
hereof, in whole or from time to time in part in increments of U.S. $1,000 or
the minimum Authorized Denomination (provided that any remaining principal
amount hereof shall be at least U.S. $1,000 or such minimum Authorized
Denomination), at the Redemption Price (as defined below), together with unpaid
interest accrued thereon to the date fixed for redemption (each, a "Redemption
Date"), on notice given to the holder hereof not more than 60 nor less than 30
calendar days prior to the Redemption Date and in accordance with the provisions
of the Indenture. The "Redemption Price" shall initially be the Initial
Redemption Percentage specified on the face hereof multiplied by the unpaid
principal amount of this Note to be redeemed. The Initial Redemption Percentage
shall decline at each anniversary of the Initial Redemption Date by an amount
equal to the Annual Redemption Percentage Reduction, if any, specified on the
face hereof until the Redemption Price is equal to 100% of the unpaid principal
amount to be redeemed. In the event of redemption of this Note in part only, a
new Note of like tenor for the unredeemed portion hereof and otherwise having
the same terms as this Note shall be issued in the name of the holder hereof
upon the presentation and surrender hereof.
A-9
<PAGE> 10
This Note will be subject to repayment by the Issuer at the option of
the holder hereof on the Optional Repayment Date(s), if any, specified on the
face hereof, in whole or in part in increments of U.S. $1,000 or the minimum
Authorized Denomination (provided that any remaining principal amount hereof
shall be at least U.S. $1,000 or such minimum Authorized Denomination), at a
repayment price equal to 100% of the unpaid principal amount to be repaid,
together with unpaid interest accrued thereon to the date fixed for repayment
(each, a "Repayment Date"). For this Note to be repaid, this Note must be
received, together with the form hereon entitled "Option to Elect Repayment"
duly completed, by the Trustee at its corporate trust office (or such other
address of which the Issuer shall from time to time notify the holder hereof)
not more than 60 nor less than 30 calendar days prior to the Repayment Date.
Exercise of such repayment option by the holder hereof will be irrevocable. In
the event of repayment of this Note in part only, a new Note of like tenor for
the unrepaid portion hereof and otherwise having the same terms as this Note
shall be issued in the name of the holder hereof upon the presentation and
surrender hereof.
If this Note is an Original Issue Discount Note as specified on the
face hereof, the amount payable to the holder of this Note in the event of
redemption, repayment or acceleration of maturity will be equal to the sum of
(1) the Issue Price specified on the face hereof (increased by any accruals of
the Discount, as defined below) and, in the event of any redemption of this Note
(if applicable), multiplied by the Initial Redemption Percentage (as adjusted by
the Annual Redemption Percentage Reduction, if applicable) and (2) any unpaid
interest on this Note accrued from the Original Issue Date to the Redemption
Date, Repayment Date or date of acceleration of maturity, as the case may be.
The difference between the Issue Price and 100% of the principal amount of this
Note is referred to herein as the "Discount."
For purposes of determining the amount of Discount that has accrued as
of any Redemption Date, Repayment Date or date of acceleration of maturity of
this Note, such Discount will be accrued so as to cause the yield on the Note to
be constant. The constant yield will be calculated using a 30-day month, 360-day
year convention, a compounding period that, except for the Initial Period (as
defined below), corresponds to the shortest period between Interest Payment
Dates (with ratable accruals within a compounding period) and an assumption that
the maturity of this Note will not be accelerated. If the period from the
Original Issue Date to the initial Interest Payment Date (the "Initial Period")
is shorter than the compounding period for this Note, a proportionate amount of
the yield for an entire compounding period will be accrued. If the Initial
Period is longer than the compounding period, then such period will be divided
into a regular compounding period and a short period, with the short period
being treated as provided in the preceding sentence.
If an Event of Default, as defined in the Indenture, shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture contains provisions for defeasance of (i) the entire
indebtedness of the Notes or (ii) certain covenants and Events of Default with
respect to the Notes, in each case upon compliance with certain conditions set
forth therein, which provisions apply to the Notes.
A-10
<PAGE> 11
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the holders of the Securities at any time by the Issuer
and the Trustee with the consent of the holders of not less than a majority of
the aggregate principal amount of all Securities at the time outstanding and
affected thereby. The Indenture also contains provisions permitting the holders
of not less than a majority of the aggregate principal amount of the outstanding
Securities of any series, on behalf of the holders of all such Securities, to
waive compliance by the Issuer with certain provisions of the Indenture.
Furthermore, provisions in the Indenture permit the holders of not less than a
majority of the aggregate principal amount of the outstanding Securities of any
series, in certain instances, to waive, on behalf of all of the holders of
Securities of such series, certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the holder of this Note shall be
conclusive and binding upon such holder and upon all future holders of this Note
and other Notes issued upon the registration or transfer hereof or in exchange
heretofore or in lieu hereof, whether or not notation or such consent or waiver
is made upon this Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay principal, premium, if any, and interest in
respect of this Note at the times, places and rate or formula, and in the coin
or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
and herein set forth, the transfer of this Note is registrable in the Security
Register of the Issuer upon surrender of this Note for registration of transfer
at the office or agency of the Issuer in any place where the principal hereof
and any premium or interest hereon are payable, duly endorsed by, or accompanied
by a written instrument of transfer in form satisfactory to the Issuer and the
Security Registrar duly executed by, the holder hereof or by his attorney duly
authorized in writing, and thereupon one or more new Notes, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
As provided in the Indenture and subject to certain limitations therein
and herein set forth, this Note is exchangeable for a like aggregate principal
amount of Notes of different authorized denominations but otherwise having the
same terms and conditions, as requested by the holder hereof surrendering the
same.
No service charge shall be made for any such registration of transfer
or exchange, but the Issuer may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the
holder in whose name this Note is registered as the owner thereof for all
purposes, whether or not this Note be overdue, and neither the Issuer, the
Trustee nor any such agent shall be affected by notice to the contrary.
A-11
<PAGE> 12
The Issuer will not, and will not permit a Subsidiary to, incur any
Debt, other than intercompany Debt (representing Debt to which the only parties
are the Company, the Issuer and any of their Subsidiaries, but only so
long as such Debt is held solely by any of the Company, the Issuer and
any Subsidiary) if, immediately after giving effect to the incurrence of such
additional Debt, the aggregate principal amount of all outstanding Debt of the
Issuer and its Subsidiaries on a consolidated basis determined in accordance
with generally accepted accounting principles is greater than 60% of the sum of
(i) Total Assets as of the end of the fiscal quarter covered in the Issuer's
Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as the case may
be, most recently filed with the Commission (or, if such filing is not
permitted under the Exchange Act, with the Trustee) prior to the incurrence of
such additional Debt and (ii) the increase in the Total Assets from the end of
such quarter including, without limitation, any increase in Total Assets
resulting from the incurrence of such additional Debt (such increase together
with the Issuer's Total Assets being referred to as the "Adjusted Total
Assets").
In addition to the foregoing limitation on the incurrence of Debt, the
Issuer will not, and will not permit any Subsidiary to, incur any Secured Debt
of the Issuer or any Subsidiary if, immediately after giving effect to the
incurrence of such additional Secured Debt, the aggregate principal amount of
all outstanding Secured Debt of the Issuer and its Subsidiaries on a
consolidated basis is greater than 40% of Adjusted Total Assets. Debt shall be
deemed to be "incurred" by the Issuer and its Subsidiaries on a consolidated
basis whenever the Issuer and its Subsidiaries on a consolidated basis shall
create, assume, guarantee or otherwise become liable in respect thereof.
In addition to the foregoing limitations on the incurrence of Debt, the
Issuer will not, and will not permit any Subsidiary to, incur any Debt, other
than intercompany Debt, if the ratio of Consolidated Income Available for
Debt Service to the Annual Debt Service Charge, for the period consisting of the
four consecutive fiscal quarters most recently ended prior to the date on which
such additional Debt is to be incurred, shall have been less than 1.5 to 1, on
a pro forma basis after giving effect to the incurrence of such Debt and to the
application of the proceeds therefrom, and calculated on the assumption that
(i) such Debt and any other Debt incurred by the Issuer or its Subsidiaries
since the first day of such four-quarter period and the application of the
proceeds therefrom, including to refinance other Debt, had occurred at the
beginning of such period, (ii) the repayment or retirement of any other Debt by
the Issuer or its Subsidiaries since the first day of such four-quarter period
had been repaid or retired at the beginning of such period (except that, in
making such computation, the amount of Debt under any revolving credit facility
shall be computed based upon the average daily balance of such Debt during such
period), and (iii) in the case of any increase or decrease in Total Assets, or
any other acquisition or disposition by the Issuer or any Subsidiary of any
asset or group of assets, since the first day of such four-quarter period,
including, without limitation, by merger, stock purchase or sale, or asset
purchase or sale, such increase, decrease, or other acquisition or disposition
or any related repayment of Debt had occurred as of the first day of such
period with the appropriate adjustments to net income and Debt levels with
respect to such increase, decrease or other acquisition or disposition being
included in such pro forma calculation. For purposes of the adjustments
referred to in clause (iii) of the preceding sentence, any income earned (or
loss incurred) as a result of any such increase, decrease or other acquisition
or disposition referred to in clause (iii) for a period less than such
four-quarter period shall be annualized for such four-quarter period.
A-12
<PAGE> 13
The Issuer is required to maintain Total Unencumbered Assets of not
less than 150% of the aggregate outstanding principal amount of the Unsecured
Debt of the Issuer.
A breach of any of the foregoing covenants by the Issuer and continuance
of such breach for a period of 60 days after there has been given, by registered
or certified mail, to the Issuer by the Trustee or to the Issuer and the
Trustee by the holders of at least 25% in principal amount of the outstanding
Notes a written notice as set forth in the Indenture, shall be an event of
default under the Indenture.
As used herein:
"Annual Debt Service Charge" as of any date means the amount which is
expensed in any 12-month period for interest on Debt of the Issuer and its
Subsidiaries.
"Consolidated Income Available for Debt Service" for any period means
Consolidated Net Income of the Issuer and its Subsidiaries plus amounts which
have been deducted in determining Consolidated Net Income during such period
for (i) Consolidated Interest Expense, (ii) provision for taxes of the Issuer
and its Subsidiaries based on income, (iii) amortization (other than
amortization of debt discount) and depreciation, (iv) provisions for losses
from sales or joint ventures, (v) increases in deferred taxes and other
non-cash items, (vi) charges resulting from a change in accounting principles,
and (vii) charges for early extinguishment of debt, and less amounts which have
been added in determining Consolidated Net Income during such period for (a)
provisions for gains from sales or joint ventures, and (b) decreases in
deferred taxes and other non-cash items.
"Consolidated Interest Expense" means, for any period, and without
duplication, all interest (including the interest component of rentals on
capitalized leases, letter of credit fees, commitment fees and other like
financial charges) and all amortization of debt discount on all Debt
(including, without limitation, payment-in-kind, zero coupon and other like
securities) of the Issuer and its Subsidiaries, but excluding legal fees, title
insurance charges and other out-of-pocket fees and expenses incurred in
connection with the issuance of Debt, all determined in accordance with
generally accepted accounting principles.
"Consolidated Net Income" for any period means the amount of
consolidated net income (or loss) of the Issuer and its Subsidiaries for such
period determined on a consolidated basis in accordance with generally accepted
accounting principles.
"Debt" of the Issuer or any Subsidiary means any indebtedness of the
Issuer and its Subsidiaries, whether or not contingent, in respect of (i)
borrowed money evidenced by bonds, notes, debentures or similar instruments,
(ii) indebtedness secured by any mortgage, pledge, lien, charge, encumbrance or
any security interest existing on property owned by the Issuer and its
Subsidiaries, (iii) the reimbursement obligations, contingent or otherwise, in
connection with any letters of credit actually issued or amounts representing
the balance deferred and unpaid of the purchase price of any property except
any such balance that constitutes an accrued expense or trade payable or (iv)
any lease of property by the Issuer and its Subsidiaries as lessee which is
reflected in the Issuer's consolidated balance sheet as a capitalized lease in
accordance with generally accepted accounting principles, in the case of items
of indebtedness under (i) through (iii) above to the extent that any such items
(other than letters of credit) would appear as a liability on the Issuer's
consolidated balance sheet in accordance with generally accepted accounting
principles, and also includes, to the extent not otherwise included, any
obligation by the Issuer or any Subsidiary to be liable for, or to pay, as
obligor, guarantor or otherwise (other than for purposes of collection in the
ordinary course of business), indebtedness of another person (other than the
Issuer or any Subsidiary) (it being understood that Debt shall be deemed to be
incurred by the Issuer and its Subsidiaries on a consolidated basis whenever
the Issuer and its Subsidiaries on a consolidated basis shall create, assume,
guarantee or otherwise become liable in respect thereof).
"Secured Debt" means Debt secured by any mortgage, trust deed, deed of
trust, deed to secure debt, security agreement, pledge, conditional sale or
other title retention agreement, capitalized lease, or other like agreement
granting or conveying security title to or a security interest in real property
other tangible assets.
"Senior Executive Group" shall mean, collectively, those individuals
holding the offices of Chairman, President, Chief Executive Officer, Chief
Operating Officer, or any Executive Vice President of the Company.
"Subsidiary" means (i) any corporation or other entity the majority of
the shares of the non-voting capital stock or other equivalent ownership
interests of which (except directors' qualifying shares) are at the time
directly or indirectly owned by the Issuer or the Company, and the majority of
the shares of the voting capital stock or other equivalent ownership interests
of which (except directors' qualifying shares) are at the time directly or
indirectly owned by the Issuer, the Company, any other Subsidiary, and/or one or
more individuals of the Senior Executive Group (or, in the event of death or
disability of any such individuals, his/her respective legal
representative(s)), or such individuals' successors in office as an officer of
the Company, or the Secretary of such Subsidiary, and (ii) any other entity
(other than the Company) the accounts of which are consolidated with the
accounts of the Issuer.
"Total Assets" as of any date means the sum of (i) Undepreciated Real
Estate Assets and (ii) all other assets of the Issuer and its Subsidiaries on a
consolidated basis determined in accordance with generally accepted accounting
principles (but excluding intangibles and accounts receivable).
"Total Unencumbered Assets" as of any date means the sum of (i) those
Undepreciated Real Estate Assets not securing any portion of Secured Debt and
(ii) all other assets of the Issuer and its Subsidiaries not securing any
portion of Secured Debt determined in accordance with generally accepted
accounting principles (but excluding accounts receivable and intangibles).
"Undepreciated Real Estate Assets" as of any date means the cost
(original cost plus capital improvements) of real estate assets of the Issuer
and its Subsidiaries on such date, before depreciation and amortization,
determined on a consolidated basis in accordance with generally accepted
accounting principles.
"Unsecured Debt" means Debt of the Issuer or any Subsidiary that is
not Secured Debt.
Neither the Company nor any other partner of the Issuer shall have any
obligation or liability for payment of the Notes, and holders of the Notes will
have no claims or other recourse against the Company or any other partner of
the Issuer, or against any assets of the Company or any other partner of the
Issuer, in respect of the Notes; and the holders of the Notes shall not have
any right to enforce any obligation of a partner to make a contribution to the
Issuer under any provision of the Agreement of Limited Partnership. Neither
the Company nor any other partner of the Issuer nor any of their respective
assets shall be subject to any lien, levy, execution or any other enforcement
procedure relating directly or indirectly to the Notes or any obligations
hereunder; provided, however, that in the event of a dissolution of the Issuer,
any assets of the Issuer that are received by the Company in such dissolution
shall be subject to the claims of the holders of the Notes for the enforcement
of payment thereof. The Issuer covenants that the Company shall not acquire
any assets other than interests in the Issuer and other than such bank accounts
or similar instruments or accounts as necessary to carry out its
responsibilities under the Agreement of Limited Partnership of the Issuer
without the prior written consent of a majority in principal amount of all of
the outstanding Notes. A breach of the foregoing covenant by the Issuer, and
continuance of such breach for a period of 60 days after there has been given,
by registered or certified mail, to the Issuer by the Trustee or to the Issuer
and the Trustee by the holders of at least 25% in principal amount of the
outstanding Notes a written notice as set forth in the Indenture, shall be an
event of default under the Indenture.
The Indenture and this Note shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed entirely in such State without regard to conflict of law
principles.
A-13
<PAGE> 14
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this Note, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<S> <C>
TEN COM - as tenants in common UNIF GIFT MIN ACT - ______ Custodian _______
TEN ENT - as tenants by the entireties (Cust) (minor)
JT TEN - as joint tenants with right under Uniform Gifts to Minors Act
of survivorship and not as
tenants in common
________________________
(State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
__________________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
______________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
_______________________________________________________________this Note and all
rights thereunder hereby irrevocably constituting and appointing
__________________________________________________Attorney to transfer this Note
on the books of the Trustee, with full power of substitution in the premises.
Dated:_______________ ____________________________________________
____________________________________________
Notice: The signature(s) on this Assignment
must correspond with the name(s) as written
upon the face of this Note in every
particular, without alteration or
enlargement or any change whatsoever.
A-14
<PAGE> 15
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Issuer to repay this Note (or portion hereof specified below) pursuant to its
terms at a price equal to 100% of the principal amount to be repaid, together
with unpaid interest accrued hereon to the Repayment Date, to the undersigned,
at
________________________________________________________________________________
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee must receive at its corporate
trust office in the Borough of Manhattan, The City of New York, currently
located at c/o First National Bank of Chicago, 14 Wall Street, Suite 4607, New
York, New York 10005, not more than 60 nor less than 30 calendar days prior to
the Repayment Date, this Note with this "Option to Elect Repayment" form duly
completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of U.S. $1,000 (or, if the
Specified Currency is other than United States dollars, the minimum Authorized
Denomination specified on the face hereof), which the holder elects to have
repaid and specify the denomination or denominations (which shall be an
Authorized Denomination) of the Notes to be issued to the holder for the portion
of this Note not being repaid (in the absence of any such specification, one
such Note will be issued for the portion not being repaid).
Principal Amount to
be Repaid: $__________ ____________________________________________
Notice: The signature(s) on this Option to
Elect Repayment must correspond with the
name(s) as written upon the face of this
Note in every particular, without alteration
or enlargement or any change whatsoever.
Date:__________________
A-15
<PAGE> 1
EXHIBIT 4(b)
[FACE OF NOTE]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (THE "DEPOSITARY") (55 WATER STREET, NEW YORK, NEW YORK) TO THE
ISSUER HEREOF OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME
AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY AND ANY PAYMENT
IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.1
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.2
REGISTERED REGISTERED
No. FLR- PRINCIPAL AMOUNT:
CUSIP No.:
POST APARTMENT HOMES, L.P.
MEDIUM TERM NOTE
(Floating Rate)
INTEREST RATE BASIS ORIGINAL ISSUE DATE: STATED MATURITY DATE:
OR BASES:
IF LIBOR: IF CMT RATE:
[ ] LIBOR Reuters Designated CMT Telerate Page:
[ ] LIBOR Telerate Designated CMT Maturity Index:
- ----------------------
1 This paragraph applies to global Notes only.
2 This paragraph applies to global Notes only.
<PAGE> 2
INDEX CURRENCY:
INDEX MATURITY: INITIAL INTEREST RATE: % INTEREST PAYMENT DATE(S):
SPREAD (PLUS OR SPREAD MULTIPLIER: INITIAL INTEREST RESET
MINUS): DATE:
MINIMUM INTEREST RATE: % MAXIMUM INTEREST RATE: %
INTEREST RESET DATE(S):
INITIAL REDEMPTION INITIAL REDEMPTION ANNUAL REDEMPTION
DATE: PERCENTAGE: % PERCENTAGE REDUCTION: %
OPTIONAL REPAYMENT CALCULATION AGENT:
DATE(S):
INTEREST CATEGORY: DAY COUNT CONVENTION:
[ ] Regular Floating Rate Note [ ] 30/360 for the period
[ ] Floating Rate/Fixed Rate Note from to
Fixed Rate Commencement Date: [ ] Actual/360 for the period
Fixed Interest Rate: % from to
[ ] Inverse Floating Rate Note [ ] Actual /Actual for the period
Fixed Interest Rate: % from to
[ ] Original Issue Discount Note Applicable Interest Rate Basis:
Issue Price: %
SPECIFIED CURRENCY: AUTHORIZED DENOMINATION:
[ ] United States dollars [ ] $1,000 and integral multiples
[ ] Other: thereof
[ ] Other:
EXCHANGE RATE AGENT:
DEFAULT RATE: %
ADDENDUM ATTACHED
[ ] Yes
[ ] No
OTHER/ADDITIONAL PROVISIONS:
B-2
<PAGE> 3
POST APARTMENT HOMES, L.P., a Georgia limited partnership (the
"Operating Partnership" or the "Issuer"), which terms include any successor
under the Indenture hereinafter referred to), for value received, hereby
promises to pay to _________ or its registered assigns, the principal amount of
$__________, on the Stated Maturity Date specified above (or any Redemption
Date or Repayment Date, each as defined on the reverse hereof) (each such
Stated Maturity Date, Redemption Date or Repayment Date being hereinafter
referred to as the "Maturity Date" with respect to the principal repayable on
such date) and to pay interest thereon, at a rate per annum equal to the
Initial Interest Rate specified above until the Initial Interest Reset Date
specified above and thereafter at a rate determined in accordance with the
provisions specified above and on the reverse hereof with respect to one or
more Interest Rate Bases specified above until the principal hereof is paid or
duly made available for payment, and (to the extent that the payment of such
interest shall be legally enforceable) at the Default Rate per annum specified
above on any overdue principal, premium and/or interest. The Issuer will pay
interest in arrears on each Interest Payment Date, if any, specified above
(each, an "Interest Payment Date"), commencing with the first Interest Payment
Date next succeeding the Original Issue Date specified above, and on the
Maturity Date; provided, however, that if the Original Issue Date occurs
between a Record Date (as defined below) and the related Interest Payment Date,
interest payments will commence on the Interest Payment Date immediately
following the next succeeding Record Date to the holder of this Note on such
next succeeding Record Date.
Interest on this Note will accrue from, and including, the immediately
preceding Interest Payment Date to which interest has been paid or duly provided
for (or from, and including, the Original Issue Date if no interest has been
paid or duly provided for) to, but excluding, the applicable Interest Payment
Date or the Maturity Date, as the case may be (each, an "Interest Period"). The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, subject to certain exceptions described herein, be paid to
the person in whose name this Note (or one or more predecessor Notes) is
registered at the close of business on the fifteenth calendar day (whether or
not a Business Day, as defined on the reverse hereof) immediately preceding such
Interest Payment Date (the "Record Date"); provided, however, that interest
payable on the Maturity Date will be payable to the person to whom the principal
hereof and premium, if any, hereon shall be payable. Any such interest not so
punctually paid or duly provided for ("Defaulted Interest") will forthwith cease
to be payable to the holder on any Record Date, and shall be paid to the person
in whose name this Note is registered at the close of business on a special
record date (the "Special Record Date") for the payment of such Defaulted
Interest to be fixed by the Trustee hereinafter referred to, notice whereof
shall be given to the holder of this Note by the Trustee not less than 10
calendar days prior to such Special Record Date or may be paid at any time in
any other lawful manner not inconsistent with the requirements of any securities
exchange on which this note may be listed, and upon such notice as may be
required by such exchange, all as more fully provided for in the Indenture.
Payment of principal, premium, if any, and interest in respect of this
Note due on the Maturity Date will be made in immediately available funds upon
presentation and surrender of this Note (and, with respect to any applicable
repayment of this Note, a duly completed election form as
B-3
<PAGE> 4
contemplated on the reverse hereof) at the corporate trust office of the Trustee
maintained for that purpose in the Borough of Manhattan, The City of New York,
currently located c/o First National Bank of Chicago, 14 Wall Street, Suite
4607, New York, New York 10005, or at such other paying agency in the Borough of
Manhattan, The City of New York, as the Issuer may determine; provided, however,
that if such payment is to be made in a Specified Currency other than United
States dollars as set forth below, such payment will be made by wire transfer of
immediately available funds to an account with a bank designated by the holder
hereof at least 15 calendar days prior to the Maturity Date, provided that such
bank has appropriate facilities therefor and that this Note (and, if applicable,
a duly completed repayment election form) is presented and surrendered at the
aforementioned office of the Trustee in time for the Trustee to make such
payment in such funds in accordance with its normal procedures. Payment of
interest due on any Interest Payment Date other than the Maturity Date will be
made by check mailed to the address of the person entitled thereto as such
address shall appear in the Security Register maintained at the aforementioned
office of the Trustee; provided, however, that a holder of U.S. $10,000,000 (or,
if the Specified Currency specified above is other than United States dollars,
the equivalent thereof in the Specified Currency) or more in aggregate principal
amount of Notes (whether having identical or different terms and provisions)
will be entitled to receive interest payments on such Interest Payment Date by
wire transfer of immediately available funds if appropriate wire transfer
instructions have been received in writing by the Trustee not less than 15
calendar days prior to such Interest Payment Date. Any such wire transfer
instructions received by the Trustee shall remain in effect until revoked by
such holder.
If any Interest Payment Date other than the Maturity Date would
otherwise be a day that is not a Business Day, such Interest Payment Date shall
be postponed to the next succeeding Business Day, except that if LIBOR is an
applicable Interest Rate Basis and such Business Day falls in the next
succeeding calendar month, such Interest Payment Date shall be the immediately
preceding Business Day. If the Maturity Date falls on a day that is not a
Business Day, the required payment of principal, premium, if any, and interest
shall be made on the next succeeding Business Day with the same force and effect
as if made on the date such payment was due, and no interest shall accrue with
respect to such payment for the period from and after the Maturity Date to the
date of such payment on the next succeeding Business Day.
The Issuer is obligated to make payment of principal, premium, if any,
and interest in respect of this Note in the Specified Currency (or, if the
Specified Currency is not at the time of such payment legal tender for the
payment of public and private debts, in such other coin or currency of the
country which issued the Specified Currency as at the time of such payment is
legal tender for the payment of such debts). If the Specified Currency is other
than United States dollars, any such amounts so payable by the Issuer will be
converted by the Exchange Rate Agent specified above into United States dollars
for payment to the holder of this Note; provided, however, that the holder of
this Note may elect to receive such amounts in such Specified Currency pursuant
to the provisions set forth below.
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<PAGE> 5
If the Specified Currency is other than United States dollars and the
holder of this Note shall not have duly made an election to receive all or a
specified portion of any payment of principal, premium, if any, and/or interest
in respect of this Note in the Specified Currency, any United States dollar
amount to be received by the holder of this Note will be based on the highest
bid quotation in The City of New York received by the Exchange Rate Agent at
approximately 11:00 A.M., New York City time, on the second Business Day
preceding the applicable payment date from three recognized foreign exchange
dealers (one of whom may be the Exchange Rate Agent) selected by the Exchange
Rate Agent and approved by the Issuer for the purchase by the quoting dealer of
the Specified Currency for United States dollars for settlement on such payment
date in the aggregate amount of the Specified Currency payable to all holders
of Notes scheduled to receive United States dollar payments and at which the
applicable dealer commits to execute a contract. All currency exchange costs
will be borne by the holder of this Note by deductions from such payments. If
three such bid quotations are not available, payments on this Note will be made
in the Specified Currency.
If the Specified Currency is other than United States dollars, the
holder of this Note may elect to receive all or a specified portion of any
payment of principal, premium, if any, and/or interest in respect of this Note
in the Specified Currency by submitting a written request for such payment to
the Trustee at its corporate trust office in The City of New York on or prior to
the applicable Record Date or at least 15 calendar days prior to the Maturity
Date, as the case may be. Such written request may be mailed or hand delivered
or sent by cable, telex or other form of facsimile transmission. The holder of
this Note may elect to receive all or a specified portion of all future payments
in the Specified Currency in respect of such principal, premium, if any, and/or
interest and need not file a separate election for such payment. Such election
will remain in effect until revoked by written notice to the Trustee, but
written notice of any such revocation must be received by the Trustee on or
prior to the applicable Record Date or at least 15 calendar days prior to the
Maturity Date, as the case may be.
If the Specified Currency is other than United States dollars or a
composite currency and the holder of this Note shall have duly made an election
to receive all or a specified portion of any payment of principal, premium, if
any, and/or interest in respect of this Note in the Specified Currency and if
the Specified Currency is not available due to the imposition of exchange
controls or other circumstances beyond the control of the Issuer, the Issuer
will be entitled to satisfy its obligations to the holder of this Note by making
such payment in United States dollars on the basis of the Market Exchange Rate
(as defined below) on the second Business Day prior to such payment date or, if
such Market Exchange Rate is not then available, on the basis of the most
recently available Market Exchange Rate or as otherwise specified on the face
hereof. The "Market Exchange Rate" for the Specified Currency means the noon
dollar buying rate in The City of New York for cable transfers for the Specified
Currency as certified for customs purposes by (or if not so certified, as
otherwise determined by) the Federal Reserve Bank of New York. Any payment made
under such circumstances in United States dollars will not constitute an Event
of Default (as defined in the Indenture).
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<PAGE> 6
If the Specified Currency is a composite currency and the holder of
this Note shall have duly made an election to receive all or a specified
portion of any payment of principal, premium, if any, and/or interest in
respect of this Note in the Specified Currency and if such composite currency
is unavailable due to the imposition of exchange controls or other
circumstances beyond the control of the Issuer, then the Issuer will be
entitled to satisfy its obligations to the holder of this Note by making such
payment in United States dollars. The amount of each payment in United States
dollars shall be computed by the Exchange Rate Agent on the basis of the
equivalent of the composite currency in United States dollars. The component
currencies of the composite currency for this purpose (collectively, the
"Component Currencies" and each, a "Component Currency") shall be the currency
amounts that were components of the composite currency as of the last day on
which the composite currency was used. The equivalent of the composite currency
in United States dollars shall be calculated by aggregating the United States
dollar equivalents of the Component Currencies. The United States dollar
equivalent of each of the Component Currencies shall be determined by the
Exchange Rate Agent on the basis of the Market Exchange Rate on the second
Business Day prior to the required payment or, if such Market Exchange Rate is
not then available, on the basis of the most recently available Market Exchange
Rate for each such Component Currency, or as otherwise specified on the face
hereof.
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of the currency as a Component
Currency shall be divided or multiplied in the same proportion. If two or more
Component Currencies are consolidated into a single currency, the amounts of
those currencies as Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the amounts of the consolidated Component
Currencies expressed in such single currency. If any Component Currency is
divided into two or more currencies, the amount of the original Component
Currency shall be replaced by the amounts of such two or more currencies, the
sum of which shall be equal to the amount of the original Component Currency.
All determinations referred to above made by the Exchange Rate Agent
shall be at its sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on the holder of this Note.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof and, if so specified above, in the Addendum hereto,
which further provisions shall have the same force and effect as if set forth on
the face hereof.
Notwithstanding any provisions to the contrary contained herein, if the
face of this Note specifies that an Addendum is attached hereto or that
"Other/Additional Provisions" apply, this Note shall be subject to the terms set
forth in such Addendum or such "Other/Additional Provisions."
The Issuer will indemnify the holder of this Note against any loss
incurred by the holder hereof as a result of any judgment or any order being
given or made for any amount due under such Note and such judgment or order
requiring payment in a foreign currency or composite currency (the
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<PAGE> 7
"Judgment Currency") other than such foreign currency or composite currency,
and as a result of any variation between (i) the rate of exchange at which the
foreign currency or composite currency amount is converted into the Judgment
Currency for the purpose of such judgment or order, and (ii) the rate of
exchange at which the holder of this Note, on the date of payment of such
judgment or order, is able to purchase the foreign currency or composite
currency with the amount of Judgment Currency actually received by the holder
hereof, as the case may be.
Unless the Certificate of Authentication hereon has been executed by
the Trustee by manual signature, this Note shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
B-7
<PAGE> 8
IN WITNESS WHEREOF, Post Apartment Homes, L.P. has caused this Note to
be duly executed.
POST APARTMENT HOMES, L.P.,
as Issuer
By: POST PROPERTIES, INC.,
as General Partner
By:
---------------------------------------------
Name: John A. Williams
Title: Chairman and Chief Executive Officer
Attest:
- -----------------------------------
Sherry W. Cohen
Senior Vice President and Secretary
[SEAL]
B-8
<PAGE> 9
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
Dated:
----------------------
SUNTRUST BANK, ATLANTA,
as Trustee
By:
-----------------------------------------
Authorized Signatory
B-9
<PAGE> 10
[REVERSE OF NOTE]
POST APARTMENT HOMES, L.P.
MEDIUM-TERM NOTE
(Floating Rate)
This Note is one of a duly authorized series of Securities (the
"Securities") of the Issuer issued and to be issued under an Indenture, dated as
of September 25, 1996, as amended, modified or supplemented from time to time,
(the "Indenture"), between the Issuer and SunTrust Bank, Atlanta, as Trustee
(the "Trustee", which term includes any successor trustee under the Indenture),
to which Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Issuer, the Trustee and the holders of the
Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Note is one of the series of Securities
designated as "Medium-Term Notes Due Nine Months or More From Date of Issue"
(the "Notes"), which series of Securities is limited to $175,000,000 aggregate
initial offering price (or the equivalent thereof, determined as of the
respective dates of issuance, in any other currency or currencies), subject to
the provisions of the Indenture. All terms used but not defined in this Note
specified on the face hereof or in an Addendum hereto shall have the meanings
assigned to such terms in the Indenture.
This Note is issuable only in registered form without coupons in
minimum denominations of U.S. $1,000 and integral multiples thereof or the
minimum Authorized Denomination specified on the face hereof.
This Note will not be subject to any sinking fund and, unless otherwise
provided on the face hereof in accordance with the provisions of the following
two paragraphs, will not be redeemable or repayable prior to the Stated Maturity
Date.
This Note will be subject to redemption at the option of the Issuer on
any date on or after the Initial Redemption Date, if any, specified on the face
hereof, in whole or from time to time in part in increments of U.S. $1,000 or
the minimum Authorized Denomination (provided that any remaining principal
amount hereof shall be at least U.S. $1,000 or such minimum Authorized
Denomination), at the Redemption Price (as defined below), together with unpaid
interest accrued thereon to the date fixed for redemption (each, a "Redemption
Date"), on notice given to the holder hereof not more than 60 nor less than 30
calendar days prior to the Redemption Date and in accordance with the provisions
of the Indenture. The "Redemption Price" shall initially be the Initial
Redemption Percentage specified on the face hereof multiplied by the unpaid
principal amount of this Note to be redeemed. The Initial Redemption Percentage
shall decline at each anniversary of the Initial Redemption Date by an amount
equal to the Annual Redemption Percentage Reduction, if any, specified on the
face hereof until the Redemption Price is 100% of unpaid principal amount to be
redeemed. In the event of redemption of this Note in part only, a new Note of
like tenor for the unredeemed portion hereof and otherwise having the same terms
as this Note shall be issued in the name of the holder hereof upon the
presentation and surrender hereof.
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<PAGE> 11
This Note will be subject to repayment by the Issuer at the option of
the holder hereof on the Optional Repayment Date(s), if any, specified on the
face hereof, in whole or in part in increments of U.S. $1,000 or the minimum
Authorized Denomination (provided that any remaining principal amount hereof
shall be at least U.S. $1,000 or such minimum Authorized Denomination), at a
repayment price equal to 100% of the unpaid principal amount to be repaid,
together with unpaid interest accrued thereon to the date fixed for repayment
(each, a "Repayment Date"). For this Note to be repaid, this Note must be
received, together with the form hereon entitled "Option to Elect Repayment"
duly completed, by the Trustee at its corporate trust office (or such other
address of which the Issuer shall from time to time notify the holder hereof)
not more than 60 nor less than 30 calendar days prior to the Repayment Date.
Exercise of such repayment option by the holder hereof will be irrevocable. In
the event of repayment of this Note in part only, a new Note of like tenor for
the unrepaid portion hereof and otherwise having the same terms as this Note
shall be issued in the name of the holder hereof upon the presentation and
surrender hereof.
If the Interest Category of this Note is specified on the face hereof
as an Original Issue Discount Note, the amount payable to the holder of this
Note in the event of redemption, repayment, or acceleration of maturity of this
Note will be equal to the sum of (1) the Issue Price specified on the face
hereof (increased by any accruals of the Discount, as defined below) and, in the
event of any redemption of this Note (if applicable), multiplied by the Initial
Redemption Percentage (as adjusted by the Annual Redemption Percentage
Reduction, if applicable) and (2) any unpaid interest on this Note accrued from
the Original Issue Date to the Redemption Date, Repayment Date or date of
acceleration of maturity, as the case may be. The difference between the Issue
Price and 100% of the principal amount of this Note is referred to herein as the
"Discount."
For purposes of determining the amount of Discount that has accrued as
of any Redemption Date, Repayment Date or date of acceleration of maturity of
this Note, such Discount will be accrued so as to cause an assumed yield on the
Note to be constant. The assumed constant yield will be calculated using a
30-day month, 360-day year convention, a compounding period that, except for the
Initial Period (as defined below), corresponds to the shortest period between
Interest Payment Dates (with ratable accruals within a compounding period), a
constant coupon rate equal to the initial interest rate applicable to this Note
and an assumption that the maturity of this Note will not be accelerated. If the
period from the Original Issue Date to the initial Interest Payment Date (the
"Initial Period") is shorter than the compounding period for this Note, a
proportionate amount of the yield for an entire compounding period will be
accrued. If the Initial Period is longer than the compounding period, then such
period will be divided into a regular compounding period and a short period,
with the short period being treated as provided in the preceding sentence.
The interest rate borne by this Note will be determined as follows:
(i) Unless the Interest Category of this Note is specified
on the face hereof as a "Floating Rate/Fixed Rate Note" or an "Inverse
Floating Rate Note", or the face hereof specifies that either
Other/Additional Provisions or an Addendum hereto apply, in each case
relating to a different interest rate formula, this Note shall be
designated as a "Regular
B-11
<PAGE> 12
Floating Rate Note" and, except as set forth below or specified on the
face hereof or in an Addendum hereto, shall bear interest at the rate
determined by reference to the applicable Interest Rate Basis or Bases
(a) plus or minus the Spread, if any, and/or (b) multiplied by the
Spread Multiplier, if any, in each case as specified on the face
hereof. Commencing on the first Interest Reset Date, the rate at
which interest on this Note shall be payable shall be reset as of each
Interest Reset Date specified on the face hereof; provided, however,
that the interest rate in effect for the period, if any, from the
Original Issue Date to the first Interest Reset Date shall be the
Initial Interest Rate.
(ii) If the Interest Category of this Note is specified on the
face hereof as a "Floating Rate/Fixed Rate Note", then, except as set
forth below or specified on the face hereof or in an Addendum hereto,
this Note shall bear interest at the rate determined by reference to
the applicable Interest Rate Basis or Bases (a) plus or minus the
Spread, if any, and/or (b) multiplied by the Spread Multiplier, if any.
Commencing on the first Interest Reset Date, the rate at which interest
on this Note shall be payable shall be reset as of each Interest Reset
Date; provided, however, that (y) the interest rate in effect for the
period, if any, from the Original Issue Date to the first Interest
Reset Date shall be the Initial Interest Rate and (z) the interest rate
in effect for the period commencing on the Fixed Rate Commencement Date
specified on the face hereof to the Maturity Date shall be the Fixed
Interest Rate specified on the face hereof or, if no such Fixed
Interest Rate is specified, the interest rate in effect hereon on the
day immediately preceding the Fixed Rate Commencement Date.
(iii) If the Interest Category of this Note is specified on
the face hereof as an "Inverse Floating Rate Note", then, except as set
forth below or specified on the face hereof or in an Addendum hereto,
this Note shall bear interest at the Fixed Interest Rate minus the rate
determined by reference to the applicable Interest Rate Basis or Bases
(a) plus or minus the Spread, if any, and/or (b) multiplied by the
Spread Multiplier, if any; provided, however, that, unless otherwise
specified on the face hereof or in an Addendum hereto, the interest
rate hereon shall not be less than zero. Commencing on the first
Interest Reset Date, the rate at which interest on this Note shall be
payable shall be reset as of each Interest Reset Date; provided,
however, that the interest rate in effect for the period, if any, from
the Original Issue Date to the first Interest Reset Date shall be the
Initial Interest Rate.
Unless otherwise specified on the face hereof, the rate with respect to
each Interest Rate Basis will be determined in accordance with the applicable
provisions below. Except as set forth above or on the face hereof, the interest
rate in effect on each day shall be (i) if such day is an Interest Reset Date,
the interest rate determined as of the Interest Determination Date (as defined
below) immediately preceding such Interest Reset Date or (ii) if such day is not
an Interest Reset Date, the interest rate determined as of the Interest
Determination Date immediately preceding the most recent Interest Reset Date.
B-12
<PAGE> 13
If any Interest Reset Date would otherwise be a day that is not a
Business Day, such Interest Reset Date shall be postponed to the next succeeding
Business Day, except that if LIBOR is an applicable Interest Rate Basis and such
Business Day falls in the next succeeding calendar month, such Interest Reset
Date shall be the immediately preceding Business Day. In addition, if the
Treasury Rate is an applicable Interest Rate Basis and the Interest
Determination Date would otherwise fall on an Interest Reset Date, then such
Interest Reset Date will be postponed to the next succeeding Business Day.
As used herein, "Business Day" means any day, other than a Saturday or
Sunday, that is neither a legal holiday nor a day on which banking institutions
are authorized or required by law, regulation or executive order to close in The
City of New York; provided, however, that if the Specified Currency is other
than United States dollars and any payment is to be made in the Specified
Currency in accordance with the provisions hereof, such day is also not a day on
which banking institutions are authorized or required by law or executive order
to close in the Principal Financial Center (as defined below) of the country
issuing the Specified Currency (or, in the case of European Currency Units
("ECU"), is not a day that appears as an ECU non-settlement day on the display
designated as "ISDE" on the Reuter Monitor Money Rates Service (or a day so
designated by the ECU Banking Association) or, if ECU non-settlement days do not
appear on that page (and are not so designated), is not a day on which payments
in ECU cannot be settled in the international interbank market; provided,
further, that if LIBOR is an applicable Interest Rate Basis, such day is also a
London Business Day (as defined below). "London Business Day" means (i)
if the Index Currency (as defined below) is other than ECU, any day on which
dealings in such Index Currency are transacted in the London interbank market or
(ii) if the Index Currency is ECU, any day that does not appear as an ECU
non-settlement day on the display designated as "ISDE" on the Reuter Monitor
Money Rates Service (or a day so designated by the ECU Banking Association) or,
if ECU non-settlement days do not appear on that page (and are not so
designated), is not a day on which payments in ECU cannot be settled in the
international interbank market. "Principal Financial Center" means the capital
city of the country issuing the Specified Currency, or solely with respect to
the calculation of LIBOR, the Index Currency, except that with respect to United
States dollars, Australian dollars, Deutsche marks, Dutch guilders, Italian
lire, Swiss francs and ECU's, the Principal Financial Center shall be The City
of New York, Sydney, Frankfurt, Amsterdam, Milan, Zurich and Luxembourg,
respectively.
The "Interest Determination Date" with respect to the CD Rate, the CMT
Rate, the Commercial Paper Rate, the Federal Funds Rate and the Prime Rate will
be the second Business Day immediately preceding the applicable Interest Reset
Date; the "Interest Determination Date" with respect to the Eleventh District
Cost of Funds Rate will be the last working day of the month immediately
preceding the applicable Interest Reset Date on which the Federal Home Loan Bank
of San Francisco (the "FHLB of San Francisco") publishes the Index (as defined
below); and the "Interest Determination Date" with respect to LIBOR shall be the
second London Business Day immediately preceding the applicable Interest Reset
Date, unless the Index Currency is British pounds sterling, in which case the
"Interest Determination Date" will be the applicable Interest Reset Date. The
"Interest Determination Date" with respect to the Treasury Rate will be the day
in the
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<PAGE> 14
week in which the applicable Interest Reset Date falls on which day Treasury
Bills (as defined below) are normally auctioned (Treasury Bills are normally
sold at an auction held on Monday of each week, unless that day is a legal
holiday, in which case the auction is normally held on the following Tuesday,
except that such auction may be held on the preceding Friday); provided,
however, that if an auction is held on the Friday of the week preceding the
applicable Interest Reset Date, the Interest Determination Date shall be such
preceding Friday; provided, further, that if an auction falls on the applicable
Interest Reset Date, then the Interest Reset Date will instead be the first
Business Day following such auction. If the interest rate of this Note is
determined with reference to two or more Interest Rate Bases specified on the
face hereof, the "Interest Determination Date" pertaining to this Note shall be
the most recent Business Day which is at least two Business Days prior to the
applicable Interest Reset Date on which each Interest Rate Basis is
determinable. Each Interest Rate Basis shall be determined as of such date, and
the applicable interest rate shall take effect on the related Interest Reset
Date.
CD Rate. If an Interest Rate Basis for this Note is specified on the
face hereof, as the CD Rate, the CD Rate shall be determined as of the
applicable Interest Determination Date (a "CD Rate Interest Determination Date")
as the rate on such date for negotiable United States dollar certificates of
deposit having the Index Maturity specified on the face hereof as published by
the Board of Governors of the Federal Reserve System in "Statistical Release
H.15(519), Selected Interest Rates" or any successor publication ("H.15(519)")
under the heading "CDs (Secondary Market)", or, if not published by 3:00 P.M.,
New York City time, on the related Calculation Date (as defined below), the rate
on such CD Rate Interest Determination Date for negotiable United States dollar
certificates of deposit of the Index Maturity as published by the Federal
Reserve Bank of New York in its daily statistical release "Composite 3:30 P.M.
Quotations for United States Government Securities" or any successor publication
("Composite Quotations") under the heading "Certificates of Deposit." If such
rate is not yet published in either H.15(519) or Composite Quotations by 3:00
P.M., New York City time, on the related Calculation Date, then the CD Rate on
such CD Rate Interest Determination Date will be calculated by the Calculation
Agent specified on the face hereof and will be the arithmetic mean of the
secondary market offered rates as of 10:00 A.M., New York City time, on such CD
Rate Interest Determination Date, of three leading nonbank dealers in negotiable
United States dollar certificates of deposit in The City of New York (which may
include an Agent or its affiliates) selected by the Calculation Agent for
negotiable United States dollar certificates of deposit of major United States
money market banks for negotiable certificates of deposit with a remaining
maturity closest to the Index Maturity specified herein in an amount that is
representative for a single transaction in that market at that time; provided,
however, that if the dealers so selected by the Calculation Agent are not
quoting as mentioned in this sentence, the CD Rate determined as of such CD Rate
Interest Determination Date will be the CD Rate in effect on such CD Rate
Interest Determination Date.
CMT Rate. If an Interest Rate Basis for this Note is specified on the
face hereof as the CMT rate, the CMT Rate shall be determined as of the
applicable Interest Determination Date (a "CMT Rate Interest Determination
Date") as the rate displayed on the Designated CMT Telerate Page (as defined
below) under the caption ". . . Treasury Constant Maturities . . . Federal
Reserve Board
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<PAGE> 15
Release H.15 . . . Mondays Approximately 3:45 P.M.", under the column for the
Designated CMT Maturity Index (as defined below) for (i) if the Designated CMT
Telerate Page is 7055, the rate on such CMT Rate Interest Determination Date and
(ii) if the Designated CMT Telerate Page is 7052, the weekly or monthly average,
as applicable, for the week, or the month, as applicable, ended immediately
preceding the week or month, as applicable, in which the related CMT Rate
Interest Determination Date occurs. If such rate is no longer displayed on the
relevant page or is not displayed by 3:00 P.M., New York City time, on the
related Calculation Date, then the CMT Rate for such CMT Rate Interest
Determination Date will be such treasury constant maturity rate for the
Designated CMT Maturity Index as published in the relevant H.15(519). If such
rate is no longer published or is not published by 3:00 P.M., New York City
time, on the related Calculation Date, then the CMT Rate on such CMT Rate
Interest Determination Date will be such treasury constant maturity rate for the
Designated CMT Maturity Index (or other United States Treasury rate for the
Designated CMT Maturity Index) for the CMT Rate Interest Determination Date with
respect to such Interest Reset Date as may then be published by either the Board
of Governors of the Federal Reserve System or the United States Department of
the Treasury that the Calculation Agent determines to be comparable to the rate
formerly displayed on the Designated CMT Telerate Page and published in the
relevant H.15(519). If such information is not provided by 3:00 P.M., New York
City time, on the related Calculation Date, then the CMT Rate on the CMT Rate
Interest Determination Date will be calculated by the Calculation Agent and will
be a yield to maturity, based on the arithmetic mean of the secondary market
closing offer side prices as of approximately 3:30 P.M., New York City time, on
such CMT Rate Interest Determination Date reported, according to their written
records, by three leading primary United States government securities dealers
(each, a "Reference Dealer") in The City of New York (which may include an Agent
or its affiliates) selected by the Calculation Agent (from five such Reference
Dealers selected by the Calculation Agent and eliminating the highest quotation
(or, in the event of equality, one of the highest) and the lowest quotation (or,
in the event of equality, one of the lowest)), for the most recently issued
direct noncallable fixed rate obligations of the United States ("Treasury
Notes") with an original maturity of approximately the Designated CMT Maturity
Index and a remaining term to maturity of not less than such Designated CMT
Maturity Index minus one year. If the Calculation Agent is unable to obtain
three such Treasury Note quotations, the CMT Rate on such CMT Rate Interest
Determination Date will be calculated by the Calculation Agent and will be a
yield to maturity based on the arithmetic mean of the secondary market offer
side prices as of approximately 3:30 P.M., New York City time, on such CMT Rate
Interest Determination Date of three Reference Dealers in The City of New York
(from five such Reference Dealers selected by the Calculation Agent and
eliminating the highest quotation (or, in the event of equality, one of the
highest) and the lowest quotation (or, in the event of equality, one of the
lowest)), for Treasury Notes with an original maturity of the number of years
that is the next highest to the Designated CMT Maturity Index and a remaining
term to maturity closest to the Designated CMT Maturity Index and in an amount
of at least $100 million. If three or four (and not five) of such Reference
Dealers are quoting as described above, then the CMT Rate will be based on the
arithmetic mean of the offer prices obtained and neither the highest nor the
lowest of such quotes will be eliminated; provided, however, that if fewer than
three Reference Dealers selected by the Calculation Agent are quoting as
mentioned herein, the CMT Rate determined as of such CMT Rate Interest
Determination Date will be the CMT Rate in effect on such
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<PAGE> 16
CMT Rate Interest Determination Date. If two Treasury Notes with an original
maturity as described in the second preceding sentence have remaining terms to
maturity equally close to the Designated CMT Maturity Index, the quotations for
the Treasury Note with the shorter remaining term to maturity will be used.
"Designated CMT Telerate Page" means the display on the Dow Jones
Telerate Service (or any successor service) on the page specified on the face
hereof (or any other page as may replace such page on that service for the
purpose of displaying Treasury Constant Maturities as reported in H.15(519)) for
the purpose of displaying Treasury Constant Maturities as reported in H.15(519).
If no such page is specified on the face hereof, the Designated CMT Telerate
Page shall be 7052, for the most recent week.
"Designated CMT Maturity Index" means the original period to maturity
of the United States Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or 30
years) specified on the face hereof with respect to which the CMT Rate will be
calculated. If no such maturity is specified on the face hereof, the Designated
CMT Maturity Index shall be two years.
Commercial Paper Rate. If an Interest Rate Basis for this Note is
specified on the face hereof as the Commercial Paper Rate, the Commercial Paper
Rate shall be determined as of the applicable Interest Determination Date (a
"Commercial Paper Rate Interest Determination Date") as the Money Market Yield
(as defined below) on such date of the rate for commercial paper having the
Index Maturity as published in H.15(519) under the heading "Commercial Paper."
In the event that such rate is not published by 3:00 P.M., New York City time,
on such Calculation Date, then the Commercial Paper Rate on such Commercial
Paper Rate Interest Determination Date will be the Money Market Yield of the
rate for commercial paper having the Index Maturity as published in Composite
Quotations under the heading "Commercial Paper" (with an Index Maturity of one
month or three months being deemed to be equivalent to an Index Maturity of 30
days or 90 days, respectively). If such rate is not yet published in either
H.15(519) or Composite Quotations by 3:00 P.M., New York City time, on such
Calculation Date, then the Commercial Paper Rate on such Commercial Paper Rate
Interest Determination Date will be calculated by the Calculation Agent and
shall be the Money Market Yield of the arithmetic mean of the offered rates at
approximately 11:00 A.M., New York City time, on such Commercial Paper Rate
Interest Determination Date of three leading dealers of commercial paper in The
City of New York selected by the Calculation Agent for commercial paper having
the Index Maturity placed for an industrial issuer whose bond rating is "Aa", or
the equivalent, from a nationally recognized statistical rating organization;
provided, however, that if the dealers so selected by the Calculation Agent are
not quoting as mentioned in this sentence, the Commercial Paper Rate determined
as of such Commercial Paper Rate Interest Determination Date will be the
Commercial Paper Rate in effect on such Commercial Paper Rate Interest
Determination Date.
"Money Market Yield" means a yield (expressed as a percentage)
calculated in accordance with the following formula:
B-16
<PAGE> 17
Money Market Yield = D x 360 x 100
---------------
360 - (D x M)
where "D" refers to the applicable per annum rate for commercial paper quoted on
a bank discount basis and expressed as a decimal, and "M" refers to the actual
number of days in the Interest Period for which interest is being calculated.
Eleventh District Cost Of Funds Rate. If an Interest Rate Basis for
this Note is specified on the face hereof as the Eleventh District Cost of Funds
Rate, the Eleventh District Cost of Funds Rate shall be determined as of the
applicable Interest Determination Date (an "Eleventh District Cost of Funds Rate
Interest Determination Date") as the rate equal to the monthly weighted average
cost of funds for the calendar month immediately preceding the month in which
such Eleventh District Cost of Funds Rate Interest Determination Date falls, as
set forth under the caption "11th District" on Telerate Page 7058 as of 11:00
A.M., San Francisco time, on such Eleventh District Cost of Funds Rate Interest
Determination Date. If such rate does not appear on Telerate Page 7058 on such
Eleventh District Cost of Funds Rate Interest Determination Date, then the
Eleventh District Cost of Funds Rate on such Eleventh District Cost of Funds
Rate Interest Determination Date shall be the monthly weighted average cost of
funds paid by member institutions of the Eleventh Federal Home Loan Bank
District that was most recently announced (the "Index") by the FHLB of San
Francisco as such cost of funds for the calendar month immediately preceding
such Eleventh District Cost of Funds Rate Interest Determination Date. If the
FHLB of San Francisco fails to announce the Index on or prior to such Eleventh
District Cost of Funds Rate Interest Determination Date for the calendar month
immediately preceding such Eleventh District Cost of Funds Rate Interest
Determination Date, the Eleventh District Cost of Funds Rate determined as of
such Eleventh District Cost of Funds Rate Interest Determination Date will be
the Eleventh District Cost of Funds Rate in effect on such Eleventh District
Cost of Funds Rate Interest Determination Date.
Federal Funds Rate. If an Interest Rate Basis for this Note is
specified on the face hereof as the Federal Funds Rate, the Federal Funds Rate
shall be determined as of the applicable Interest Determination Date (a "Federal
Funds Rate Interest Determination Date") as the rate on such date for United
States dollar federal funds as published in H.15(519) under the heading "Federal
Funds (Effective)" or, if not published by 3:00 P.M., New York City time, on the
related Calculation Date, the rate on such Federal Funds Rate Interest
Determination Date as published in Composite Quotations under the heading
"Federal Funds/Effective Rate". If such rate is not published in either
H.15(519) or Composite Quotations by 3:00 P.M., New York City time, on the
related Calculation Date, then the Federal Funds Rate on such Federal Funds
Interest Determination Date will be calculated by the Calculation Agent and will
be the arithmetic mean of the rates for the last transaction in overnight United
States dollar federal funds arranged by three leading brokers of federal funds
transactions in The City of New York (which may include an Agent or its
affiliates) selected by the Calculation Agent, prior to 9:00 A.M., New York City
time, on such Federal Funds Rate Interest Determination Date; provided, however,
that if the brokers so selected by the Calculation Agent are not quoting as
mentioned in this sentence, the Federal Funds Rate determined
B-17
<PAGE> 18
as of such Federal Funds Rate Interest Determination Date will be the Federal
Funds Rate in effect on such Federal Funds Rate Interest Determination Date.
LIBOR. If an Interest Rate Basis for this Note is specified on the face
hereof as LIBOR, LIBOR shall be determined by the Calculation Agent, as of the
applicable Interest Determination Date (a "LIBOR Interest Determination Date")
in accordance with the following provisions:
(i) if (a) "LIBOR Reuters" is specified on the face hereof,
the arithmetic mean of the offered rates (unless the Designated LIBOR
Page (as defined below) by its terms provides only for a single rate,
in which case such single rate will be used) for deposits in the Index
Currency having the Index Maturity, commencing on the applicable
Interest Reset Date, that appear (or, if only a single rate is required
as aforesaid, appears) on the Designated LIBOR Page (as defined below)
as of 11:00 A.M., London time, on such LIBOR Interest Determination
Date, or (b) "LIBOR Telerate" is specified on the face hereof, or if
neither "LIBOR Reuters" nor "LIBOR Telerate" is specified on the face
hereof as the method for calculating LIBOR, the rate for deposits in
the Index Currency having the Index Maturity, commencing on such
Interest Reset Date, that appears on the Designated LIBOR Page as of
11:00 A.M., London time, on such LIBOR Interest Determination Date. If
fewer than two such offered rates appear, or if no such rate appears,
as applicable, LIBOR on such LIBOR Interest Determination Date will be
determined in accordance with the provisions described in clause (ii)
below.
(ii) With respect to a LIBOR Interest Determination Date on
which fewer than two offered rates appear, or no rate appears, as the
case may be, on the Designated LIBOR Page as specified in clause (i)
above, the Calculation Agent will request the principal London offices
of each of four major reference banks (which may include affiliates of
the Agents) in the London interbank market, as selected by the
Calculation Agent, to provide the Calculation Agent with its offered
quotation for deposits in the Index Currency for the period of the
Index Maturity, commencing on the applicable Interest Reset Date, to
prime banks in the London interbank market at approximately 11:00 A.M.,
London time, on such LIBOR Interest Determination Date and in a
principal amount that is representative for a single transaction in
such Index Currency in such market at such time. If at least two such
quotations are so provided, then LIBOR on such LIBOR Interest
Determination Date will be the arithmetic mean of such quotations. If
fewer than two such quotations are so provided, then LIBOR on such
LIBOR Interest Determination Date will be the arithmetic mean of the
rates quoted at approximately 11:00 A.M., in the applicable Principal
Financial Center, on such LIBOR Interest Determination Date by three
major banks (which may include affiliates of the Agents) in such
Principal Financial Center selected by the Calculation Agent for loans
in the Index Currency to leading European banks, having the Index
Maturity and in a principal amount that is representative for a single
transaction in such Index Currency in such market at such time;
provided, however, that if the banks so selected by the Calculation
Agent are not quoting as mentioned in this sentence, LIBOR determined
as of such LIBOR
B-18
<PAGE> 19
Interest Determination Date shall be LIBOR in effect on such LIBOR
Interest Determination Date.
"Index Currency" means the currency or composite currency specified on
the face hereof as to which LIBOR shall be calculated. If no such currency or
composite currency is specified on the face hereof, the Index Currency shall be
United States dollars.
"Designated LIBOR Page" means (a) if "LIBOR Reuters" is specified on
the face hereof, the display on the Reuter Monitor Money Rates Service (or any
successor service) on the page specified herein (or any other page as may
replace such page on such service) for the purpose of displaying the London
interbank rates of major banks for the Index Currency, or (b) if "LIBOR
Telerate" is specified on the face hereof or neither "LIBOR Reuters" nor "LIBOR
Telerate" is specified on the face hereof as the method for calculating LIBOR,
the display on the Dow Jones Telerate Service (or any successor service) on the
page specified herein (or any other page as may replace such page on such
service) for the purpose of displaying the London interbank rates of major banks
for the Index Currency.
Prime Rate. If an Interest Rate Basis for this Note is specified on the
face hereto as the Prime Rate, the Prime Rate shall be determined as of the
applicable Interest Determination Date (a "Prime Rate Interest Determination
Date") as the rate on such date as such rate is published in H.15(519) under the
heading "Bank Prime Loan". If such rate is not published prior to 3:00 P.M., New
York City time, on the related Calculation Date, then the Prime Rate shall be
the arithmetic mean of the rates of interest publicly announced by each bank
that appears on the Reuters Screen USPRIME1 Page (as defined below) as such
bank's prime rate or base lending rate as in effect for such Prime Rate Interest
Determination Date. If fewer than four such rates appear on the Reuters Screen
USPRIME1 Page for such Prime Rate Interest Determination Date, the Prime Rate
shall be the arithmetic mean of the prime rates or base lending rates quoted on
the basis of the actual number of days in the year divided by a 360-day year as
of the close of business on such Prime Rate Interest Determination Date by four
major money center banks (which may include affiliates of the Agent) in The City
of New York selected by the Calculation Agent. If fewer than four such
quotations are so provided, then the Prime Rate shall be the arithmetic mean of
four prime rates quoted on the basis of the actual number of days in the year
divided by a 360-day year as of the close of business on such Prime Rate
Interest Determination Date as furnished in The City of New York by the major
money center banks, if any, that have provided such quotations and by as many
substitute banks or trust companies (which may include affiliates of the Agent)
as necessary to obtain four such prime rate quotations, provided such substitute
banks or trust companies are organized and doing business under the laws of the
United States, or any State thereof, each having total equity capital of at
least U.S. $500 million and being subject to supervision or examination by
Federal or State authority, selected by the Calculation Agent to provide such
rate or rates; provided, however, that if the banks or trust companies so
selected by the Calculation Agent are not quoting as mentioned in this sentence,
the Prime Rate determined as of such Prime Rate Interest Determination Date will
be the Prime Rate in effect on such Prime Rate Interest Determination Date.
B-19
<PAGE> 20
"Reuters Screen USPRIME1 Page" means the display designated as page
"USPRIME1" on the Reuter Monitor Money Rates Service (or any successor service)
(or such other page as may replace the USPRIME1 page on that service for the
purpose of displaying prime rates or base lending rates of major United States
banks).
Treasury Rate. If an Interest Rate Basis for this Note is specified on
the face hereof as the Treasury Rate, the Treasury Rate shall be determined as
of the applicable Interest Determination Date (a "Treasury Rate Interest
Determination Date") as the rate from the auction held on such Treasury Rate
Interest Determination Date (the "Auction") of direct obligations of the United
States ("Treasury Bills") having the Index Maturity, as such rate is published
in H.15(519) under the heading "Treasury bills-auction average (investment)" or,
if not published by 3:00 P.M., New York City time, on the related Calculation
Date, the auction average rate of such Treasury Bills (expressed as a bond
equivalent on the basis of a year of 365 or 366 days, as applicable, and applied
on a daily basis) as otherwise announced by the United States Department of the
Treasury. In the event that the results of the Auction of Treasury Bills having
the Index Maturity are not reported as provided above by 3:00 P.M., New York
City time, on such Calculation Date, or if no such Auction is held, then the
Treasury Rate shall be calculated by the Calculation Agent and shall be a yield
to maturity (expressed as a bond equivalent on the basis of a year of 365 or 366
days, as applicable, and applied on a daily basis) of the arithmetic mean of the
secondary market bid rates, as of approximately 3:30 P.M., New York City time,
on such Treasury Rate Interest Determination Date, of three leading primary
United States government securities dealers (which may include an Agent or its
affiliates) selected by the Calculation Agent, for the issue of Treasury Bills
with a remaining maturity closest to the Index Maturity; provided, however, that
if the dealers so selected by the Calculation Agent are not quoting as mentioned
in this sentence, the Treasury Rate determined as of such Treasury Rate Interest
Determination Date will be the Treasury Rate in effect on such Treasury Rate
Interest Determination Date.
Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, in each case as specified on the face hereof. The
interest rate on this Note will in no event be higher than the maximum rate
permitted by New York law, as the same may be modified by United States law of
general application.
The Calculation Agent shall calculate the interest rate hereon on or
before each Calculation Date. The "Calculation Date", if applicable, pertaining
to any Interest Determination Date shall be the earlier of (i) the tenth
calendar day after such Interest Determination Date or, if such day is not a
Business Day, the next succeeding Business Day or (ii) the Business Day
immediately preceding the applicable Interest Payment Date or the Maturity Date,
as the case may be. At the request of the holder hereof, the Calculation Agent
will provide to the holder hereof the interest rate hereon then in effect and,
if determined, the interest rate that will become effective as a result of a
determination made for the next succeeding Interest Reset Date.
B-20
<PAGE> 21
Accrued interest hereon shall be an amount calculated by multiplying
the principal amount hereof by an accrued interest factor. Such accrued interest
factor shall be computed by adding the interest factor calculated for each day
in the applicable Interest Period. Unless otherwise specified as the Day Count
Convention on the face hereof, the interest factor for each such date shall be
computed by dividing the interest rate applicable to such day by 360 if the CD
Rate, the Commercial Paper Rate, the Eleventh District Cost of Funds Rate, the
Federal Funds Rate, LIBOR or the Prime Rate is an applicable Interest Rate Basis
or by the actual number of days in the year if the CMT Rate or the Treasury Rate
is an applicable Interest Rate Basis. Unless otherwise specified as the Day
Count Convention on the face hereof, the interest factor for this Note, if the
interest rate is calculated with reference to two or more Interest Rate Bases,
shall be calculated in each period in the same manner as if only the applicable
Interest Rate Basis specified on the face hereof applied.
All percentages resulting from any calculation on this Note shall be
rounded to the nearest one hundred-thousandth of a percentage point, with five
one-millionths of a percentage point rounded upwards, and all amounts used in or
resulting from such calculation on this Note shall be rounded, in the case of
United States dollars, to the nearest cent or, in the case of a Specified
Currency other than United States dollars, to the nearest unit (with one half
cent or unit being rounded upwards).
If an Event of Default, as defined in the Indenture, shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture contains provisions for defeasance of (i) the entire
indebtedness of the Notes or (ii) certain covenants and Events of Default with
respect to the Notes, in each case upon compliance with certain conditions set
forth therein, which provisions apply to the Notes.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the holders of the Securities at any time by the Issuer
and the Trustee with the consent of the holders of not less than a majority of
the aggregate principal amount of all Securities at the time outstanding and
affected thereby. The Indenture also contains provisions permitting the holders
of not less than a majority of the aggregate principal amount of the outstanding
Securities of any series, on behalf of the holders of all such Securities, to
waive compliance by the Issuer with certain provisions of the Indenture.
Furthermore, provisions in the Indenture permit the holders of not less than a
majority of the aggregate principal amount of the outstanding Securities of any
series, in certain instances, to waive, on behalf of all of the holders of
Securities of such series, certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the holder of this Note shall be
conclusive and binding upon such holder and upon all future holders of this Note
and other Notes issued upon the registration of transfer hereof or in exchange
herefore or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Note.
B-21
<PAGE> 22
No reference herein to the Indenture and no provisions of this Note or
of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay principal, premium, if any, and interest in
respect of this Note at the times, places and rate or formula, and in the coin
or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
and herein set forth, the transfer of this Note is registrable in the Security
Register of the Issuer upon surrender of this Note for registration of transfer
at the office or agency of the Issuer in any place where the principal hereof
and any premium or interest hereon are payable, duly endorsed by, or accompanied
by a written instrument of transfer in form satisfactory to the Issuer and the
Security Registrar duly executed by, the holder hereof or by his attorney duly
authorized in writing, and thereupon one or more new Notes, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
As provided in the Indenture and subject to certain limitations therein
and herein set forth, this Note is exchangeable for a like aggregate principal
amount of Notes of different authorized denominations but otherwise having the
same terms and conditions, as requested by the holder hereof surrendering the
same.
No service charge shall be made for any such registration of transfer
or exchange, but the Issuer may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the
holder in whose name this Note is registered as the owner thereof for all
purposes, whether or not this Note be overdue, and neither the Issuer, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Issuer will not, and will not permit a Subsidiary to, incur any
Debt, other than intercompany Debt (representing Debt to which the only parties
are the General Partner, the Issuer and any of their Subsidiaries, but only so
long as such Debt is held solely by any of the General Partner, the Issuer and
any Subsidiary) if, immediately after giving effect to the incurrence of such
additional Debt, the aggregate principal amount of all outstanding Debt of the
Issuer and its Subsidiaries on a consolidated basis determined in accordance
with generally accepted accounting principles is greater than 60% of the sum of
(i) Total Assets as of the end of the fiscal quarter covered in the Issuer's
Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as the case may
be, most recently filed with the Commission (or, if such filing is not
permitted under the Exchange Act, with the Trustee) prior to the incurrence of
such additional Debt and (ii) the increase in the Total Assets from the end of
such quarter including, without limitation, any increase in Total Assets
resulting from the incurrence of such additional Debt (such increase together
with the Issuer's Total Assets being referred to as the "Adjusted Total
Assets");
B-22
<PAGE> 23
In addition to the foregoing limitation on the incurrence of Debt, the
Issuer will not, and will not permit any Subsidiary to, incur any secured Debt
if, immediately after giving effect to the incurrence of such additional
Secured Debt, the aggregate principal amount of all outstanding Secured Debt of
the Issuer and its Subsidiaries on a consolidated basis is greater than 40% of
the Adjusted Total Assets. Debt shall be deemed to be "incurred" by the Issuer
and its Subsidiaries on a consolidated basis whenever the Issuer and its
Subsidiaries on a consolidated basis shall create, assume, guarantee or
otherwise become liable in respect thereof.
In addition to the foregoing limitations on the incurrence of Debt, the
Issuer will not, and will not permit any Subsidiary to, incur any Debt, other
than intercompany Debt, if, the ratio of Consolidated Income Available for Debt
Service to the Maximum Annual Service Charge, for the period consisting of
the four consecutive fiscal quarters most recently ended prior to the date on
which such additional Debt is to be incurred shall have been less than 1.5 to
1, on a pro forma basis after giving effect to the incurrence of such Debt and
to the application of the proceeds therefrom, and calculated on the assumption
that (i) such Debt and any other Debt incurred by the Issuer or its
Subsidiaries since the first day of such four-quarter period and the
application of the proceeds therefrom, including to refinance other Debt, had
occurred at the beginning of such period, (ii) the repayment or retirement of
any other Debt by the Issuer or its Subsidiaries since the first day of such
four-quarter period had been repaid or retired at the beginning of such period
(except that, in making such computation, the amount of Debt under any
revolving credit facility shall be computed based upon the average daily
balance of such Debt during such period), and (iii) in the case of any increase
or decrease in Total Assets, or any other acquisition or disposition by the
Issuer or any Subsidiary of any asset or group of assets, since the first day
of such four-quarter period, including, without limitation, by merger, stock
purchase or sale, or asset purchase or sale, such increase, decrease, or other
acquisition or disposition or any related repayment of Debt had occurred as
of the first day of such period with the appropriate adjustments to net income
and Debt levels with respect to such acquisition or disposition being included
in such pro forma calculation. For purposes of the adjustments referred to in
clause (iii) of the preceeding sentence, any income earned (or loss incurred)
as a result of any such increase, decrease or other acquisition or disposition
referred to in clause (iii) for a period less than such four-quarter period
shall be annualized for such four-quarter period.
The Issuer is required to maintain Total Unencumbered Assets of not
less than 150% of the aggregate outstanding principal amount of the Unsecured
Debt of the Issuer.
A breach of any of the foregoing covenants by the Operating
Partnership, and continuance of such breach for a period of 60 days after there
has been given, by registered or certified mail, to the Operating Partnership
by the Trustee or to the Operating Partnership and the Trustee by the holders
of at least 25% in principal amount of the outstanding Notes a written notice
as set forth in the Indenture, shall be an event of default under the
Indenture.
B-23
<PAGE> 24
As used herein:
"Annual Debt Service Charge" as of any date means the amount which is
expensed in any 12-month period for interest on Debt of the Issuer and its
Subsidiaries.
"Consolidated Income Available for Debt Service" for any period means
Consolidated Net Income plus amounts which have been deducted in determining
Consolidated Net Income during such period for (i) Consolidated Interest
Expense, (ii) provision for taxes of the Issuer and its Subsidiaries based on
income, (iii) amortization (other than amortization of debt discount) and
depreciation, (iv) provisions for losses from sales or joint ventures, (v)
increases in deferred taxes and other non-cash items, (vi) charges resulting
from a change in accounting principles, and (vii) charges for early
extinguishment of debt, and less amounts which have been added in determining
Consolidated Net Income during such period for (a) provisions for gains from
sales or joint ventures, and (b) decreases in deferred taxes and other non-cash
items.
"Consolidated Interest Expense" means, for any period, and without
duplication, all interest (including the interest component of rentals on
capitalized leases, letter of credit fees, commitment fees and other like
financial charges) and all amortization of debt discount on all Debt
(including, without limitation, payment-in-kind, zero coupon and other like
securities) of the Issuer and its Subsidiaries, but excluding legal fees, title
insurance charges and other out-of-pocket fees and expenses incurred in
connection with the issuance of Debt, all determined in accordance with
generally accepted accounting principles.
"Consolidated Net Income" for any period means the amount of
consolidated net income (or loss) of the Issuer and its Subsidiaries for such
period determined on a consolidated basis in accordance with generally accepted
accounting principles.
"Debt" of the Issuer or any Subsidiary means any indebtedness of the
Issuer and its Subsidiaries, whether or not contingent, in respect of (i)
borrowed money evidenced by bonds, notes, debentures or similar instruments,
(ii) indebtedness secured by any mortgage, pledge, lien, charge, encumbrance or
any security interest existing on property owned by the Issuer and its
Subsidiaries, (iii) the reimbursement obligations, contingent or otherwise, in
connection with any letters of credit actually issued or amounts representing
the balance deferred and unpaid of the purchase price of any property except
any such balance that constitutes an accrued expense or trade payable or (iv)
any lease of property by the Issuer and its Subsidiaries as lessee which is
reflected in the Issuer's consolidated balance sheet as a capitalized lease in
accordance with generally accepted accounting principles, in the case of items
of indebtedness under (i) through (iii) above to the extent that any such items
(other than letters of credit) would appear as a liability on the Issuer's
consolidated balance sheet in accordance with generally accepted accounting
principles, and also includes, to the extent not otherwise included, any
obligation by the Issuer or any Subsidiary to be liable for, or to pay, as
obligor, guarantor or otherwise (other than for purposes of collection in the
ordinary course of business), indebtedness of another person (other than the
Issuer or any Subsidiary) (it being understood that Debt shall be deemed to be
incurred by the Operating Partnership and its Subsidiaries on a
B-24
<PAGE> 25
consolidated basis whenever the Operating Partnership and its Subsidiaries on a
consolidated basis shall create, assume, guarantee or otherwise become liable
in respect thereof).
"Secured Debt" means Debt secured by any mortgage, trust deed, deed of
trust, deed to secure debt, security agreement, pledge, conditional sale or
other title retention agreement, capitalized lease, or other like agreement
granting or conveying security title to or a security interest in real property
other tangible assets.
"Senior Executive Group" shall mean, collectively, those individuals
holding the offices of Chairman, President, Chief Executive Officer, Chief
Operating Officer, or any Executive Vice President of the General Partner.
"Subsidiary" means (i) any corporation or other entity the majority of
the shares of the non-voting capital stock or other equivalent ownership
interests of which (except directors' qualifying shares) are at the time
directly or indirectly owned by the Issuer or the General Partner, and the
majority of the shares of the voting capital stock or other equivalent
ownership interests of which (except directors' qualifying shares) are at the
time directly or indirectly owned by the Issuer, the General Partner, any other
Subsidiary, and/or one or more individuals of the Senior Executive Group (or,
in the event of death or disability of any such individuals, his/her respective
legal representative(s)), or such individuals' successors in office as an
officer of the General Partner or the Secretary of such Subsidiary, and (ii)
any other entity (other than the General Partner) the accounts of which are
consolidated with the accounts of the Issuer.
"Total Assets" as of any date means the sum of (i) Undepreciated Real
Estate Assets and (ii) all other assets of the Issuer and its Subsidiaries on a
consolidated basis determined in accordance with generally accepted accounting
principles (but excluding intangibles and accounts receivable).
"Total Unencumbered Assets" as of any date means the sum of (i) those
Undepreciated Real Estate Assets not securing any portion of Secured Debt and
(ii) all other assets of the Issuer and its Subsidiaries not securing any
portion of Secured Debt determined in accordance with generally accepted
accounting principles (but excluding accounts receivable and intangibles).
"Undepreciated Real Estate Assets" as of any date means the cost
(original cost plus capital improvements) of real estate assets of the Issuer
and its Subsidiaries on such date, before depreciation and amortization,
determined on a consolidated basis in accordance with generally accepted
accounting principles.
"Unsecured Debt" means Debt of the Issuer or any Subsidiary that is
not Secured Debt.
Neither the Company nor any other partner of the Operating Partnership
shall have any obligation or liability for payment of the Notes, and holders of
the Notes will have no claims or other recourse against the Company or any
other partner of the Operating Partnership, or against any assets of the
Company or any other partner of the Operating Partnership, in respect of the
Notes; and the holders of the Notes shall not have any right to enforce any
obligation of a partner to make a contribution to the Operating Partnership
under any provision of the Agreement of Limited Partnership. Neither the
Company nor any other partner of the Operating Partnership nor any of their
respective assets shall be subject to any lien, levy, execution or any other
enforcement procedure relating directly or indirectly to the Notes or any
obligations hereunder; provided, however, that in the event of a dissolution of
the Operating Partnership, any assets of the Operating Partnership that are
received by the Company in such dissolution shall be subject to the claims of
the holders of the Notes for the enforcement of payment thereof. The Operating
Partnership covenants that the Company shall not acquire any assets other than
interests in the Operating Partnership and other than such bank accounts or
similar instruments or accounts as necessary to carry out its responsibilities
under the Agreement of Limited Partnership of the Operating Partnership without
the prior written consent of a majority in principal amount of all of the
outstanding Notes. A breach of the foregoing covenant by the Operating
Partnership, and continuance of such breach for a period of 60 days after there
has been given, by registered or certified mail, to the Operating Partnership
by the Trustee or to the Operating Partnership and the Trustee by the holders
of at least 25% in principal amount of the outstanding Notes a written notice
as set forth in the Indenture, shall be an event of default under the
Indenture.
The Indenture and this Note shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed entirely in such State without regard to conflict of law
principles.
B-25
<PAGE> 26
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this Note, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<S> <C>
TEN COM - as tenants in common UNIF GIFT MIN ACT - ______ Custodian _______
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of under Uniform Gifts to Minors Act
survivorship and not as tenants
in common ___________________________
(State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
________________________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
_______________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
________________________________________________________ this Note and all
rights thereunder hereby irrevocably constituting and appointing
________________________________________________________ Attorney to transfer
this Note on the books of the Trustee, with full power of substitution in the
premises.
Dated: _________________ ____________________________________________
____________________________________________
Notice: This signature(s) on this Assignment
must correspond with the name(s) as written
upon the face of this Note in every
particular, without alteration or
enlargement or any change whatsoever.
B-26
<PAGE> 27
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Issuer to repay this Note (or portion hereof specified below) pursuant to its
terms at a price equal to 100% of the principal amount to be repaid, together
with unpaid interest accrued hereon to the Repayment Date, to the undersigned,
at
_______________________________________________________________________________
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee must receive at its corporate
trust office in the Borough of Manhattan, The City of New York, currently
located c/o First National Bank of Chicago, 14 Wall Street, Suite 4607, New
York, New York 10005, not more than 60 nor less than 30 calendar days prior to
the Repayment Date, this Note with this "Option to Elect Repayment" form duly
completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of U.S. $1,000 (or, if the
Specified Currency is other than United States dollars, the minimum Authorized
Denomination specified on the face hereof)) which the holder elects to have
repaid and specify the denomination or denominations (which shall be an
Authorized Denomination) of the Notes to be issued to the holder for the portion
of this Note not being repaid (in the absence of any such specification, one
such Note will be issued for the portion not being repaid).
Principal Amount
to be Repaid: $_________ __________________________________________
Notice: The signature(s) on this Option to
Elect Repayment must correspond with the
name(s) as written upon the face of this
Note in every particular, without alteration
or enlargement or any change whatsoever.
Date:___________________
B-27
<PAGE> 1
EXHIBIT 5(a)
[KING & SPALDING LETTERHEAD]
191 PEACHTREE STREET
ATLANTA, GEORGIA 30303-1763
TELEPHONE: 404/572-4600
FACSIMILE: 404/572-5100
DIRECT DIAL: DIRECT FAX:
January 29, 1997
Post Properties, Inc.
Post Apartment Homes, L.P.
3350 Cumberland Circle
Suite 2200
Atlanta, Georgia 30339
Re: Post Apartment Homes, L.P. -- $175,000,000 Aggregate Principal
Amount of Medium-Term Notes Due Nine Months or More from Date of
Issue
Ladies and Gentlemen:
We have acted as counsel for Post Properties, Inc., a Georgia corporation
(the "Company"), and Post Apartment Homes, L.P., a Georgia limited partnership
(the "Operating Partnership"), in connection with the registration under the
Securities Act of 1933, as amended, of $175,000,000 aggregate principal amount
of Medium-Term Notes Due Nine Months or More from Date of Issue (the "Notes")
pursuant to a Prospectus Supplement dated January 29, 1997 (the "Notes
Prospectus Supplement").
In connection with this opinion, we have examined and relied upon such
records, documents, certificates and other instruments as in our judgment are
necessary or appropriate to form the basis for the opinions hereinafter set
forth. In all such examinations, we have assumed the genuineness of signatures
on original documents and the conformity to such original documents of all
copies submitted to us as certified, conformed or photographic copies, and as
to certificates of public officials, we have assumed the same to have been
properly given and to be accurate. As to matters of fact material to this
opinion, we have relied upon statements and representations of representatives
of the Company and of public officials.
We have assumed that the execution and delivery of, and the performance
of all obligations under, an indenture (the "Indenture") dated as of September
25, 1996 between the Operating Partnership and Sun Trust Bank, Atlanta, as
trustee (the "Trustee") will be duly authorized by all requisite action by the
Trustee, and that the Indenture was duly executed and delivered by, and is a
valid and binding agreement of, the Trustee, enforceable against the Trustee in
accordance with its terms.
This opinion is limited in all respects to the federal laws of the
United States of America and the laws of the States of Georgia and New York, and
no opinion is expressed with respect to the laws of any other jurisdiction or
any effect which such laws may have on the
<PAGE> 2
Post Properties, Inc.
Post Apartment Homes, L.P.
January 29, 1997
Page 2
- ----------------
opinions expressed herein. This opinion is limited to the matters stated
herein, and no opinion is implied or may be inferred beyond the matters
expressly stated herein.
Based upon the foregoing, and the other limitations and
qualifications set forth herein, we are of the opinion that:
(i) The Operating Partnership is a validly existing limited
partnership under the laws of the State of Georgia; and
(ii) Upon the issuance and sale thereof as described in the Notes
Prospectus Supplement and, when executed by the Operating Partnership and duly
authenticated by the Trustee in accordance with the terms of the Indenture, the
Notes will (x) be valid and binding obligations of the Operating Partnership,
enforceable against the Operating Partnership in accordance with their terms
and (y) be entitled to the benefits of the Indenture.
The opinions set forth above are subject, as to enforcement, to
(i) bankruptcy, insolvency, reorganization, moratorium and other similar laws
relating to or affecting the enforcement of creditors' rights generally, and
(ii) general equitable principles (regardless of whether enforcement is
considered in a proceeding in equity or law).
This opinion is given as of the date hereof, and we assume no
obligation to advise you after the date hereof of facts or circumstances that
come to our attention or changes in law that occur which could affect the
opinions contained herein. This letter is being rendered solely for the
benefit of the Operating Partnership in connection with the matters addressed
herein. This opinion may not be furnished to or relied upon by any person or
entity for any purpose without our prior written consent.
Very truly yours,
KING & SPALDING
